Allahabad High Court
Rishipal And 10 Ors vs State Of U.P. And Anr on 20 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 493
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on:- 24.01.2019 Delivered on:- 20.02.2019 Case :- APPLICATION U/S 482 No. - 882 of 2019 Applicant :- Rishipal And 10 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Mukhtar Alam Counsel for Opposite Party :- G.A.,S,K,Pundir Hon'ble Siddharth,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. This application has been filed under Section 482 Cr.P.C. praying for quashing of the order dated 17.12.2018 passed by Additional Chief Judicial Magistrate, Deoband, District- Saharanpur in Criminal Case No. 4106 of 2018 (State vs. Harshit and others) under Sections- 307, 506, 326, 147, 148, 149, 452 I.P.C., P.S.- Deoband, District- Saharanpur.
3. The brief facts of the case are that the opposite party no. 2, Ram Kumar, lodged FIR dated 11.09.2018 and the police investigated the case and recorded the statement of opposite party no. 2, informant, under Section 161 Cr.P.C., statement of Smt. Rajkumari and injured, Anuj Kumar, also under Section 161 Cr.P.C. Site plan was prepared and injured, Anuj Kumar, was medically examined at C.H.C., Deoband on 10.09.2018 and he was referred to higher medical centre. However, he was admitted in a private hospital and a supplementary report was prepared by private hospital. The investigating officer on 24.09.2018 recorded the statement of independent witnesses, namely, Mahipal Singh, Amit, Pappu, Lokendra, Sachin, Somendra, Ram Kishan and Harpal under Section 161 Cr.P.C. who stated that the applicants have not committed any offence and only accused, Harshit, caused injury to the injured. The investigating officer submitted charge sheet only against Harshit under Sections 307, 506 I.P.C. and exonerated the applicants from charges. On the submission of the police report before the court a protest petition, annexing therewith his own affidavit as well as affidavits of witnesses, Vineet Kumar, Harendra and Hemraj, was filed by the first informant, opposite party no. 2 before the Magistrate. On the basis of the aforesaid protest petition the Magistrate has passed the summoning order dated 17.12.2018 against 12 persons, 11 out of them are before this court challenging the same.
4. The counsel for the applicants has submitted (i) that the learned magistrate has committed gross illegality in summoning the applicants on the basis of the protest petition and affidavit submitted by the opposite party No. 2 alongwith the protest petition exercising the powers under Section 190(1)(b) Cr.P.C.
(ii) That, if the magistrate received final report the following four courses were open to him and he was required to adopt anyone of them as the facts and circumstances of the case my require:
(a) He may have agreed with the conclusions arrived at by the police, accepted the report and dropped the proceedings. But before so doing, he should have an opportunity of hearing to the complainant; or
(b) He may have taken cognizance under Section 190(1)(b) Cr.P.C. and issued process straightway to the accuseds without being bound by the conclusions of the investigating agency, had he been satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or
(c) He may have without issuing process or dropping the proceedings decided to take cognizance under Section 190(1)(a) Cr.P.C. upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decided whether complaint should be dismissed or process should be issued.
(iii) That, where the magistrate decides to take cognizance of the case under Section 190(1)(b) of the code ignoring the conclusions arrived at by the investigating agency and applying his mind independent to the facts emerging from the investigation record, in such a situation the magistrate is not bound to follow the procedure laid down in sections 200 and 202 of the Code, and consequently the proviso to Section 202(2) Cr.P.C. will have no application. It would however be relevant to mention that for forming such an independent opinion the magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190(10)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under Section 200.
(iv) That, the court below while summoning the applicants took into consideration the protest petition was well as affidavits, which are not the part of the case diary as such the summoning of the applicants is bad in the eyes of law.
(v) That, the impugned order dated 17.12.2018 has been passed without applying his judicial mind and without assigning any reason. The magistrate passed unreasoned and non speaking order ignoring the settled law laid down by the Apex Court and also by this Court.
(vi) That the learned magistrate also summoned the father of Shiv Kumar, namely, Om Prakash who has already expired about 10 years ago, the impugned order dated 17.12.2018 ill-considered and the same is liable to be quashed by this Court.
(vii) That, the Applicant Nos. 5, 9, 10 & 11 are students and they have been falsely implicated on account of local party bandi of the village.
(viii) That, there was no evidence before the court below to summon the applicants under Sections 307, 506, 336, 147, 148, 149, 452 I.P.C.
(ix) That the I.O. Submitted charge sheet against the accused, Harshit, only under Sections 307, 506 I.P.C. and exonerated the applicants from the charges but at the time of taking congnizance the magistrate illegally included sections 336, 147, 149 and 452 I.P.C. and also illegally summoned the applicants as a matter of course. At the time of taking the cognizance the magistrate is only to see whether the alleged offences are made out or not from the material collected by the Investigating Officer, as such the summoning order dated 17.12.2018 is bad in the eyes of law and the same is liable to be quashed by this Hon'ble Court.
5. The counsel for the applicant has relied upon in Paragraph- 17 of the judgment of the Apex Court in the case of Fakhruddin Ahmad vs. State of Uttranchal and another (2008) 17 SCC 157 in support of his submission that the order of the court is non-speaking and ill-considered wherein in Paragraph 17 the Apex Court has stated:-
"17. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."
6. The counsel for the applicants has relied upon the judgment of the Apex Court in the case of HDFC Securities Limited and others vs. State of Maharashtra and another, wherein the Apex Court has held that:
"16. We are of the considered opinion that in the present case a fact finding investigation was directed by the impugned order. Consequently, FIR was registered against appellants No.2 to 4 and against RM (Vinod Kopar). The accused under Indian Criminal Legal System, unless proved guilty shall always be given a reasonable space and liberty to defend himself in accordance with the law. Further, it is always expected from a person accused of an offence pleading not guilty that he shall co-operate and participate in criminal proceedings or proceedings of that nature before a court of law, or other Tribunal before whom he may be accused of an ''offence' as defined in Section 3(38) of the General Clauses Act, i.e., an act punishable under the Penal Code or any special or local law. At the same time, courts, taking cognizance of the offence or conducting a trial while issuing any order, are expected to apply their mind and the order must be a well reasoned one."
7. He has further relied upon the Apex Court's judgment in the case of State of Gujarat vs. Girish Radhakrishnan Varde (2014) 3 SCC 659 wherein the Apex Court held that magistrate cannot add or subtract any section into charge-sheet and has relied upon in Paragraph 14 which is quoted below:-
"14. But if a case is registered by the police based on the FIR registered at the Police Station under Section 154 Cr.P.C. and not by way of a complaint under Section 190 (a) of the Cr.P.C. before the magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the chargesheet unless of course a complaint before the magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the chargesheet, the matter goes to the magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the magistrate cannot exclude or include any section into the chargesheet after investigation has been completed and chargesheet has been submitted by the police."
8. Reference to paragraph 16 of this court's judgment in the case of Pakhando vs. State of U.P. and another, 2001 (43) ACC 1096 has also been made where this court held that the Magistrate cannot take into account any extraneous material where he chooses to take cognizance of offence ignoring the conclusions arrived at by the Investigating Officer, "16. Where the Magistrate decides to take cognizance of the case under Section 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code, and consequently the proviso to Section 202(2) Cr.P.C. will have no application. It would however be relevant to mention that for forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case of diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under Section 200."
9. Finally in support of above contention reliance on this court's judgment in the case of Hari Ram vs. U.P. and another 2016 Lawsuit (All) 1359 has also been made wherein paragraph 28 of this court has held:
"28. Looking to exposition of law, discussed above, I find that in the present case Magistrate has not referred to any material placed before him or collected by Investigating Officer. Instead it has rejected final report on the basis of facts stated in Protest Petition and thereafter relying on the affidavits filed before him along with Protest Petition, proceeded to issue notice. The affidavits would not amount to a statement recorded by Magistrate under Section 200 and 202 Cr.P.C. Magistrate has not given any reason for rejecting Police report and nothing has been said in this regard except that in the light of affidavits placed before him along with Protest Petition, he finds that final report is liable to be rejected and accused would be summoned. This approach on the part of Magistrate, I find contrary to what has been laid down in the above authorities and the same cannot be sustained."
10. Learned counsel for the opposite party no. 2 has submitted that Magistrate is not required to give reasons if he summons the accused ignoring the police report exonerating them. He has relied upon the constitution bench judgment of Hon'ble Supreme Court in the case of Dharmpal and others vs. State of Haryana and others 2013 AIR (SC) 3018 wherein the following questions were framed for consideration in paragraph 4:-
"4. The questions which require the consideration of the Constitution Bench are as follows:
i) Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session?
ii) If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report?
iii) Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?
iv) Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction?
v) Upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto?
vi) Was Ranjit Singh's case (supra), which set aside the decision in Kishun Singh's case(supra), rightly decided or not?
11. The question relevant for deciding the proceed controversies question no. 2. The Apex Court has decided the question no. 2 in paragraph 24 is as follows:-
"24. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter."
12. Next reliance has been placed on the Apex Court judgment in the case of Bhusan Kumar and Another vs. State (NCT of Delhi) and another, 2012 AIR (SC) 1747 as under:-
"8) Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.
9) A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.
10) Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.
11) Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.
12) In Kanti Bhadra Shah & Anr. vs. State of West Bengal (2000) 1 SCC 722, the following passage will be apposite in this context:
"12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial..."
(emphasis supplied)
13) In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors. (1976) 3 SCC 736, this Court held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that once the Magistrate has exercised his discretion, it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.
14) In Dy. Chief Controller of Imports & Exports vs. Roshanlal Agarwal & Ors. (2003) 4 SCC 139, this Court, in para 9, held as under:
9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722, it was held as follows: (SCC p. 749, para 6) The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process.
There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.
15) In U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi & Anr., (2009) 2 SCC 147, this Court, in paragraph 23, held as under:
"23. It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused."
13. Reliance on the Apex Court judgment in the case of Balveer Singh and Another vs. State of Rajasthan and Another, 2016 AIR (SC) 2266 has also been placed on the following paragraphs 8,12,14, 15 and 16 have been referred:-
8. Sections 190 and 193 of the Code are in Chapter XIV. This Chapter contains the title "Conditions requisite for initiation of proceedings". Section 190 deals with cognizance of offence by Magistrates. It empowers any Magistrate of the First Class, and any Magistrate of the Second Class which are specially empowered to take cognizance "of any offence" under three circumstances mentioned therein. These three circumstances include taking of cognizance upon a Police report of such facts which may constitute an offence. It is trite law that even when Police report is filed stating that no offence is made out, the Magistrate can ignore the conclusion arrived at by the Investigating Officer and is competent to apply its independent mind to the facts emerging from the investigation and take cognizance of the case if it thinks that the facts emerging from the investigation do lead to prima facie view that commission of an offence is made out. In such a situation, the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of the case under Section 190(1)(a) though it is open for him to act under Section 200 or Section 202 as well {See Minu Kumari & Anr. v. State of Bihar & Ors.[3]}. Thus, when a complaint is received by the Magistrate under Section 190(1)(a) of the Act, the Magistrate is empowered to resort to procedure laid down in Section 200 or 202 of the Code and then take cognizance. If Police report is filed, he would take cognizance upon such a report, as provided under Section 190(1)(b) of the Code in the manner mentioned above as highlighted in the case of Minu Kumari.
12. In Dharam Pal's case, an FIR was registered against one N and the appellants for commission of offence under Section 307 and 323 read with Section 34 IPC. The police after investigation submitted its report under Section 173(2) of the Code before the Magistrate sending only N for trial while including the names of the appellants in Column 2 of the report. On receipt of such police report, the Magistrate did not, straightaway, commit the case to the Sessions Court but, on an objection being raised by the complainant, issued summons to the appellants therein to face trial with the other accused N as the Magistrate was convinced that a prima facie case to go for trial had been made out against the appellants as well. Further, while doing so, the Magistrate did not hold any further inquiry, as contemplated under Sections 190, 200 or even 202 of the Code, but proceeded to issue summons on the basis of the police report only. In this background, the following questions arose for the consideration by the Constitution Bench:
"7.1 Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session?
7.2 If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report?
7.3 Having decided to issue summons against the appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?
7.4 Can the Sessions Judge issue summons under Section 193 CrPC as a court of original jurisdiction?
7.5 Upon the case being committed to the Court of Session, could the Sessions Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto?
7.6 Was Ranjit Singh v. State of Punjab[4], which set aside the decision in Kishun Singh v. State of Bihar[5] , rightly decided or not?" Answering the reference, the Constitution Bench held that:
(a) The Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173(2) of the Code and to proceed against the accused persons dehors the police report. The Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) of the Code. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being prima facie satisfied that a case had been made out to proceed against the persons named in Column 2 of the report, he may proceed to try the said persons or if he is satisfied that a case had been made out which was triable by the Court of Session, he must commit the case to the Court of Session to proceed further in the matter. Further, if the Magistrate decides to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same is found to be triable by the Sessions Court.
(b) The Sessions Judge is entitled to issue summons under Section 193 of the Code upon the case being committed to him by the Magistrate. Section 193 speaks of cognizance of offences by the Court of Session. The key words in the section are that 'no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code'. The provision of Section 193 entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. The submission that the cognizance indicated in Section 193 deals not with cognizance of an offence but of the commitment order passed by the Magistrate, was specifically rejected in view of the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said section.
(c) Cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceeding to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 of the Code will, therefore, have to be understood as the Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the Sessions Judge.
14. Interestingly, at the same time, the Court also held that it would not be correct to hold that on receipt of a police report and seeing that the case is triable by a Court of Session, the Magistrate has no other function but to commit the case trial to the Court of Session and the Sessions Judge has to wait till the stage under Section 319 of the Code is reached before proceeding against the persons against whom a prima facie case is made out from the material contained in the case papers sent by the Magistrate while committing the case to the Court of Session. This is reflected in the following passage:
"33. As far as the first question is concerned, we are unable to accept the submissions made by Mr. Chahar and Mr Dave that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate has no other function, but to commit the case for trial to the Court of Session, which could only resort to Section 319 of the Code to array any other person as accused in the trial. In other words, according to Mr Dave, there could be no intermediary stage between taking of cognizance under Section 190(1)(b) and Section 204 of the Code issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any control over the persons named in column 2 of the police report nor the Sessions Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event the Sessions Judge ultimately found material against the persons named in column 2 of the police report, the trial would have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same." However, when we see the discussion in totality, it would be clear that the aforesaid observations were made in respect of the first question posed by the Constitution Bench in para 7.1, already reproduced above, as per which the powers of the Magistrate while committing the case to the Sessions Court were to be answered. This is so made clear in the very next para, i.e. para 34 of the judgment, wherein, while approving the dicta laid down in Kishun Singh's case, the Constitution Bench held that 'the Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173(2) of the Code and to proceed against the accused persons dehors the police report, which power the Sessions Court does not have till the Section 319 stage is reached'. This was put beyond the pale of any controversy in para 35 of the judgment, which reads as under:
"35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) CrPC. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter."
15. Discussion up to this stage answers the powers of the Magistrate by laying down the principle that even if the case is triable by the Court of Session, the function of the Magistrate is not to act merely as a post office and commit the case to the Court of Session, but he is also empowered to take cognizance, issue process and summon the accused and thereafter commit the case to the Court of Session. The position with regard to that would become clearer once we find the answer that was given by the Constitution Bench to questions at paras 7.4 to 7.6 extracted above. We would like to reproduce paras 37 to 41 of the said judgment in this behalf, which are as follows:
"37. Questions 4, 5 and 6 are more or less interlinked. The answer to Question 4 must be in the affirmative, namely, that the Sessions Judge was entitled to issue summons under Section 193 CrPC upon the case being committed to him by the learned Magistrate.
38. Section 193 of the Code speaks of cognizance of offences by the Court of Session and provides as follows:
"193.Cognizance of offences by Courts of Session.--Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." The key words in the section are that "no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code". The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr Dave to suggest that the cognizance indicated in Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said section.
39. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Sessions Judge.
40. In that view of the matter, we have no hesitation .in agreeing with the views expressed in Kishun Singh case that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Sessions Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.
41. We are also unable to accept Mr Dave's submission that the Sessions Court would have no alternative, but to wait till the stage under Section 319 Cr.P.C. was reached, before proceeding against the persons against whom a prima facie case was made out from the materials contained in the case papers sent by the learned Magistrate while committing the case to the Court of Session."
14. Reliance on the Sikkim High Court's judgment in the case of Sri Vinay Rai vs. State of Sikkim has been made. Paragraphs 6, 12 and 13 whereof are quoted below:-
"6. Resisting the above arguments, it was submitted by Learned Additional Public Prosecutor that, the Petitioner is precluded from filing the instant Application since the point of cognizance had also been taken in Crl.M.C. Nos. 17 and 22 of 2013 before this Court which was finally disposed of on 15.10.2014 and this point although averred in the Petitions had not been pressed during the hearing. It was also stated that against the Order in Crl.M.C. Nos. 17 and 22 of 2013 the petitioner had approached the Hon'ble Court but withdrawn the petition for special leave to appeal (Crl.) pointing out that certain document has not been produced before the High Court and they wanted to rely upon those documents. This was allowed by the Hon'ble Apex Court, but instead of filing any additional document, the instant application has been filed, now pressing the prayer for setting aside the impugned order of the learned Chief Judicial Magistrate taking cognizance thus, attempting to make out a new case. While inviting the attention of this court to the decision in GHCL Employees Stock Option Trust (supra) and Pepsi Food Ltd. (supra) relied on by the petitioner, it is submitted that the same deals with a private complaint case under Section 200 of the Cr.P.C. and is, therefore, not relevant for the instant matter. That, in Sunil Bharti Mittal (supra) also relied on by the petitioner, it is urged that the facts therein differ from the case as the persons summoned were not named in the FIR, while in the instant case, the petitioner's name appears in the FIR. While buttressing his submission that there is no illegality in the order of the learned Chief Judicial Magistrate, reliance was placed on Bhushan Kumar and another vs. State (NCT of Delhi) and another (2012) 5 SCC 424 wherein it was held that cognizance indicates that the Magistrate had taken judicial notice of an offence, that the impugned order herein, reflects as much. Hence, the Application is dismissed.
12.While alluding to the decision of the various High Courts on which reliance was placed by Counsel for the Petitioner, it may be mentioned that in Akash Garg vs. State of U.P. and Others 2012 (3) ALJ (NOC) 149 (All) decided by the Hon'ble High Court of Allahabad, the impugned order Magistrate was quashed with a direction to reconsider the Charge-sheet in the light of the relevant materials and to passed and appropriate order afresh in accordance with Law. A careful perusal of the Judgment would indicate that the Learned Magistrate therein had failed to disclose that he had perused that charge-sheet and the materials filed in support thereof. The Magistrate merely specified that he had received charge-sheet against the petitioner and taken cognizance. In Jitendra Mishra vs. State of U.P. and Another Application under Section 482 No. 43213 of 2012 dated 17.12.2012 of the Hon'ble Allahabad High Court while remanding back the matter to the Court below with a direction to pass a fresh speaking Order, was on account of the Magistrate not reflecting application of mind while taking cognizance of the matter. In Hazi Shafi vs. State of U.P. and Another the Hon'ble High Court of Allahabad remanded back the matter with a direction to the Magistrate to apply his mind for the reason that the order was cryptic and the Magistrate failed to reflect that he perused the police case diary and the case diary furnished and took cognizance of the matter. In Susheel Mahadeshwar and Girish Srinivasan vs. The State of Maharashtra the Hon'ble High Court of Bombay quashing the proceedings before the learned Magistrate was of the opinion that the Magistrate while taking cognizance has not scrutinized the charge-sheet, report and annexures to arrive at a finding whether a prima facie case has been made out against the accused person which was not done by the Magistrate.
13. Having perused all of the above Judgments, it is trite to reiterate that the same are not binding on this Court and are only of a persuasive value. That, having been said it may also be pointed out that in the said matters the Learned Magistrates on receiving reports under Section 173 of the Cr.P.C. had failed to reflect in their orders, that they had considered the charge sheet at all. In the case at hand it is evident on perusal of the impugned order, that the learned Chief Judicial Magistrate has unequivocally recorded that he has "seen" the charge-sheet filed by the Prosecution under Sections 420, 467, 471, 201, 120B of the I.P.C. and on consideration thereof is obviously of the opinion that prima facie case exists and has consequently taken cognizance of the offences and registered the case, followed by issuance of summons to the accused persons. The order indicates application of mind."
15. Finally reliance has been placed upon a latest judgment dated 05.02.2019 of the Apex Court in the case of State of Gujarat vs. Afroz Mohammed Hasanfatta passed in Criminal Appeal No. 224 of 2019 and reliance on paragraphs 50 and 51 of the judgment have been referred:-
"50. As discussed earlier, while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused. As discussed earlier, along with the second supplementary charge sheet, number of materials like statement of witnesses, Bank statement of the respondent-accused and his company Nile Trading Corporation and other Bank Statement, Call Detail Records and other materials were placed. Upon consideration of the second supplementary charge sheet and the materials placed thereon, the Magistrate satisfied himself that there is sufficient ground to proceed against the respondent and issued summons. The learned Single Judge, in our considered view, erred in interfering with the order of the Magistrate in exercise of revisional jurisdiction.
51. In our view, the learned Single Judge ought not to have gone into the merits of the matter when the matter is in nascent stage. When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding. The learned Single Judge committed a serious error in going into the merits and demerits of the case and the impugned order is liable to be set aside."
16. After considering the rival submissions and the authorities relied upon by them, contention of the counsel for the applicant is that before taking cognizance of an offence ignoring the conclusions Investigating Officer, on the basis of the materials collected by the investigating officer the Magistrate is required to apply his mind and after being satisfied that the material collected are sufficient to initiate proceedings against the accused person he can issue summons recording reasons for the same directing his appearance while doing so his scrutiny shall be confined to the material collected by the Investigating Officer and no extraneous material could be made basis of summoning of the accused. On the other hand the counsel for the opposite party no. 2 has contended that the Magistrate is not required to record any finding regarding his satisfaction and after going through the material collected by the investigating officer, he can direct to issuance of summons for appearance of the accused.
17. In the present case he only perused the protest petition and affidavits accompanying the same and no other material which was alien in nature. In the case laws relied upon by the counsel for the applicant, the consistent view is that the order summoning the accused, after ignoring the conclusions of Investigating Officer, should show application of mind by Magistrate before issuing summons and his satisfaction should be evident from his order summoning the accused. The counsel for the opposite party no. 2 has relied upon the authorities herein noted above and has submitted that no such satisfaction is required to be recorded by Magistrate before issuing summons to the accused although he is required to apply his mind.
18. Adverting to the constitution bench judgment of the Apex Court in the case of Dharmpal and others (supra), it is clear from paragraph 20, 24 and 25 that Magistrate has to be satisfied that a prima facie case has been made out to send the accused to trial, despite the final report submitted by the police. In the case of Bhushan Kumar (Supra) also the Apex Court has stated that the Magistrate should be satisfied that there is sufficient ground to proceed against the accused.
19. In paragraph 8 in the case of Bhushan Kumar (Supra) it has been stated that under Section 190 of the code, it is the application of judicial mind to the averments in the complaint that constitute cognizance. In paragraph 10, it has been stated that Section 204 of the code does not mandates the Magistrate to explicitly states the reason for issuance of summons, it clearly states that if in the opinion of Magistrate taking cognizance of an offence, there is sufficient ground for proceedings then the summons may be issued.
20. In the case of Balveer Singh (surpa) the issue was whether the Magistrate can take cognizance of offence triable by the court of sessions or he only acts as post office to commit the cases triable by the Sessions Judge and it is the Sessions Judge only who can take cognizance under Section 193 Cr.P.C. The controversy involved here has not been addressed in this judgment.
21. In the judgment of Sri Vinay Rai (Supra) of Sikkim High Court, there is contradiction in the judgment itself. In paragraph 10 of the judgment, the High Court has taken the view that taking cognizance does not involves any formal action, but it occurs as soon as the Magistrate applies his mind to the suspected commission of offence. The court is not required to undertake any elaborate inquiry at this stage nor is required to mention the documents which it took into consideration for the purpose of taking cognizance. However, in paragraph 13 of the same judgment High Court has recorded the finding that in the case at hand the Magistrate has recorded that he has seen the charge sheet filed by the prosecution and on consideration thereof court it is of the opinion that prima facie case exists and cognizance has been taken.
22. Strangely this itself in the view of this court and the Bombay High Court referred by the Sikkim High Court in the case of Sri Vinay Rai (supra) in paragraph 12 which the Sikkim High Court has stated as not binding on it in paragraph 12 as follows:-
12.While alluding to the decision of the various High Courts on which reliance was placed by Counsel for the Petitioner, it may be mentioned that in Akash Garg vs. State of U.P. and Others 2012 (3) ALJ (NOC) 149 (All) decided by the Hon'ble High Court of Allahabad, the impugned order Magistrate was quashed with a direction to reconsider the Charge-sheet in the light of the relevant materials and to passed and appropriate order afresh in accordance with Law. A careful perusal of the Judgment would indicate that the Learned Magistrate therein had failed to disclose that he had perused that charge-sheet and the materials filed in support thereof. The Magistrate merely specified that he had received charge-sheet against the petitioner and taken cognizance. In Jitendra Mishra vs. State of U.P. and Another Application under Section 482 No. 43213 of 2012 dated 17.12.2012 of the Hon'ble Allahabad High Court while remanding back the matter to the Court below with a direction to pass a fresh speaking Order, was on account of the Magistrate not reflecting application of mind while taking cognizance of the matter. In Hazi Shafi vs. State of U.P. and Another the Hon'ble High Court of Allahabad remanded back the matter with a direction to the Magistrate to apply his mind for the reason that the order was cryptic and the Magistrate failed to reflect that he perused the police case diary and the case diary furnished and took cognizance of the matter. In Susheel Mahadeshwar and Girish Srinivasan vs. The State of Maharashtra the Hon'ble High Court of Bombay quashing the proceedings before the learned Magistrate was of the opinion that the Magistrate while taking cognizance has not scrutinized the charge-sheet, report and annexures to arrive at a finding whether a prima facie case has been made out against the accused person which was not done by the Magistrate.
23. Finally, the reliance of the counsel for the opposite party no. 2 on the latest judgment of the Apex Court in the case of State of Gujarat (supra) also shows that in paragraph 51 it has clearly stated that at the stage of cognizance the court is not required to go through the materials collected by the investigating officer and strict standard of proof is not to be applied at the stage of issuance of summons nor the examination of probable defence is required. The court is required to satisfy itself as to whether there are sufficient grounds for proceeding against the accused as held by the Apex Court in the case of Fakhruddin Ahmad (Supra) and HDFC Securities Ltd & others (Supra).
24. From the consideration of all the authorities of the Apex Court cited on behalf of both the parties, it is clear that the minimum requirement for the Magistrate at the time of issuing summons it to record his satisfaction that sufficient material exist on record, collected by the investigating officer, forming prima facie opinion for proceeding against the accused and this opinion or satisfaction should be reflected, in short only, as per requirement of Bhushan Kumar (Supra) from the summoning order passed by the Magistrate. In the present case the following order of summoning has been passed:
"17.12.2018 vkt ;g vkjksi i= lh0vks0 dk;kZy; ls izkIr gqvk iqfyl izi=ksa dk voyksdu fd;kA iqfyl izi=ksa ds voyksdu ls dsl Mk;jh esa 161 lh0vkj0ih0lh0 c;kuksa ds vk/kkj ij o oknh vf/koDrk }kjk izk0 i= e; 'k0 i= ds vk/kkj ij vfHk;qDrx.k ¼1½ _f"kiky] ¼2½ dqesjnRr iq=x.k txesUnj] ¼3½ fofiu] ¼4½ lksuw iq=x.k _f"kiky] ¼5½ iz'kkUr iq= fofiu] ¼6½ eksuw] ¼7½ gf"kZr iq=x.k dqesj nRr] ¼8½ jke/kkjh] ¼9½ jkes'oj iq=x.k tksxsUnz] ¼10½ foosd iq= jk/ks';ke] ¼11½ lksuw iq= f'ko dqekj iq= vkse izdk'k] ¼12½ vkse izdk'k dks /kkjk&307@506@336@147@148@149@452 vkbZ0ih0lh0 esa izlaKku fy;s tkus dk i;kZIr vk/kkj gSA izlaKku fy;k x;k ntZ jftLVj gksA /kkjk&309 lh0vkj0ih0lh0 dk vfHk;qDr gf"kZr dk okjUV cuk;k tk;sA udy rS;kj dh tk;sA 'ks"k vfHk;qDr dk tfj;s izkslsl tkjh gksA fnukad 1-1-19 ds fy;s tkjh gksA"
25. A perusal of the order shows that the learned Magistrate has not recorded any finding that after going through the statements recorded by the investigating officer under Section 161 Cr.P.C. he is satisfied that there is sufficient material against the accuseds and he is satisfied that from the allegations made in the statements sufficient ground for proceeding against them are made out.
26. What the Magistrate has recorded is that from the perusal of the case diary containing statements under Section 161 Cr.P.C. and from perusal of application along with affidavit filed by the counsel for the informant there is sufficient ground for taking cognizance against the 12 accuseds. In the affidavit in support of the application under Section 482 Cr.P.C. the applicants have taken specific ground that one of the accused, Om Prakash, summoned by the Magistrate has died about 10 years ago and he has also been summoned. The Magistrate has not recorded the finding regarding his satisfaction that the allegations on record are such which make out sufficient ground for proceeding against the accused.
27. The satisfaction of the court should not only be stated but should be apparent from its order passed for summoning the accused. The order should not be explicit in details but should be in minimum possible words showing that the material collected by the inquiry officer has been seen by the Magistrate before issuance summons against the accused. This satisfaction should be apparent from the order and should be objective. It is not required to be subjective satisfaction of the Magistrate but his objective satisfaction clear from the order.
28. The reliance on the affidavits of three witnesses attached with the affidavit in support of protest petition also appears to be unwarranted in view of the judgment of this court in Pakkhando and Hari Ram (Supra). The affidavits of witnesses were extraneous to the material collected by the Investigating Officer. The order is also not very clear in this regard.
29. Even in service jurisprudence when after disciplinary enquiry of alleged misconduct of a delinquent employee the inquiry officer finds that charges against him are not found to be proved, law is clear that the disciplinary authority is required to give his reasons for not agreeing with the report of the inquiry officer. Disciplinary authority cannot proceed against the delinquent employee further without recording his reasons for disagreement with the report of inquiry officer.
30. The provision of Cr.P.C. are per-constitutional and the requirements of article 14 and 21 of the constitution were not there when the subject Indians were subjected to this law. Now every accused is entitled to know as to why and on what ground the report of the investigation officer in his favour has been discarded by the Magistrate. Magistrate should in the least possible words disclose reasons for his act. He cannot be permitted to violate the basic law of the land only on his subjective satisfaction which cannot be understood by the accused unless it is so stated objectively in the order of the Magistrate.
31. In view of the above consideration the summoning order dated 17.12.2018 passed by Additional Chief Judicial Magistrate, Deoband, District Saharanpur in Criminal Case No. 4106 of 2018 (State vs. Harshit & Others), under Sections- 307, 506, 336, 147, 148, 149, 452 I.P.C., Police Station- Deoband, District- Saharanpur pending in the court of Additional Chief Judicial Magistrate, Deoband, District- Saharanpur arising out of Case Crime No. 849 of 2018 is hereby quashed. It is open for the court below to pass fresh order in accordance with law discussed above.
32. This application is allowed.
Order date: 20.02.2019 Rohit