Allahabad High Court
Rajesh Kumar Singh And 7 Others vs State Of U.P. And Another on 20 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:144774 Court No. - 92 Case :- APPLICATION U/S 482 No. - 13977 of 2023 Applicant :- Rajesh Kumar Singh And 7 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajiv Lochan Shukla,Kripa Kant Pandey,Thakur Prasad Dubey Counsel for Opposite Party :- G.A.,P.K. Singh Hon'ble Surendra Singh-I,J.
1. Heard Shri Rajiv Lochan Shukla, learned counsel for applicants, Shri P.K. Singh, learned counsel for opposite party no. 2 and learned A.G.A. for the State.
2. The instant application u/s 482 has been filed with prayer to quash the order dated 25.03.2023 passed by the learned Chief Judicial Magistrate, Kanpur Dehat in Case No. 4555 of 2023, State of U.P. vs. Rajesh Singh and others, arising out of Case Crime No. 30 of 2022, under Sections 147, 504, 506, 302, 120B IPC, Police Station Rania, District Kanpur Dehat.
3. By the impugned order, the Magistrate had taken cognizance of the charge-sheet filed under Sections 147, 304, 504, 506 I.P.C. and instead of summoning the accused under the sections mentioned in the charge-sheet, after considering the statement of witnesses under Sections 161 Cr.P.C. and documentary evidence filed along with the charge-sheet, summoned the accused under Sections 147, 504, 506, 302, 120B I.P.C. for trial.
4. It has been submitted by the learned counsel for the applicants that the Trial Court has passed the order illegally, beyond its jurisdiction. It has also been submitted that after investigation in the aforesaid case crime number, the Investigating Officer on 13.03.2023 submitted charge sheet No. 25 of 2023, under Sections 147, 304, 504, 506 I.P.C. but the learned Magistrate after conducting inquiry vide order dated 25.03.2023 took cognizance of the offence under Sections 147, 504, 506, 302, 120B I.P.C. and summoned the accused to face trial under these sections and deleted section 304 I.P.C. in which the charge sheet was filed.
5. It has also been submitted that when a charge sheet has been submitted on the basis of a police report i.e. FIR lodged under Section 154 CrPC, the Magistrate cannot add or subtract any Section in the charge sheet at the time of taking cognizance. Thus, the learned Magistrate has committed an error of law and exceeded his jurisdiction by passing the impugned order which is liable to be quashed.
6. On the objections raised by learned counsel for opposite party no. 2 that applicants/accused could file criminal revision u/s 401 CrPC in the Court of Sessions against the impugned order and his application u/s 482 CrPC in the High Court is not maintainable, learned counsel for the applicants submitted that existence of alternative remedy is no bar against filing an application u/s 482 CrPC in the High Court, as a High Court can quash the impugned order to prevent abuse of process of the Court by the Magistrate and to secure ends of justice. Learned counsel for the applicant has relied on following judgments of the Apex Court :
(i). State of Gujarat vs. Girish Radhakrishnan Varde, (2014) 3 SCC 659
(ii). Dhariwal Tobaco Products Ltd. vs. State of Maharashtra, (2009) 2 SCC 370
7. Per contra, learned AGA for the State and learned counsel for opposite party no.2 have opposed the present application and submitted that the Magistrate concerned has passed the impugned order based on proper appreciation of oral, medical and other documentary evidence submitted with the charge sheet. He found that on the basis of evidence, cognizance against the accused should be taken under Section 302 IPC inter alia other Sections instead of Section 304 IPC and he rightly took cognizance and summoned the accused by the impugned order in the aforesaid Sections. It has also been submitted that since applicant accused has the remedy of criminal revision under Section 401 CrPC in the Court of Sessions, the exceptional remedy of filing application u/s 482 CrPC is not maintainable.
8. Admittedly, charge sheet no. 25/23 in Criminal Case No. 4555 of 2023, State of U.P. vs. Rajesh Singh and others, arising out of Case Crime No. 30 of 2022, under Sections 147, 504, 506, 302, 120B IPC, Police Station Rania, District Kanpur Dehat was submitted against the accused under Sections 147, 304, 504, 506 IPC and the accused are in judicial custody. From perusal of the impugned order dated 25.03.2023, it transpires that the learned Magistrate has thoroughly and extensively discussed the facts mentioned in the FIR. He has comprehensively analyzed the evidence of eye witnesses namely, Angad Singh, Chandrabhan and Suraj Singh as well as postmortem report of deceased Balwant including 31 injuries and the nature thereof mentioned in the postmortem report. He has also discussed the statement under Section 161 Cr.P.C. of Medical Officer, conducting the postmortem. He further discussed the opinion of medical officer conducting the postmortem as well as his statement under Section 161 CrPC. After thorough examination of aforesaid witnesses, he has expressed his opinion that cognizance against the accused should be taken under Section 302 IPC instead of Section 304 IPC along with other Sections and he has passed the impugned order.
9. The procedure which the Magistrate should follow, when a charge sheet has been submitted before him against the accused in offence triable exclusive by Court of Sessions, is provided under Section 209 CrPC which is as follows:
"209. Commitment of case to Court of Session when offence is triable exclusively by it. - When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;]
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session."
10. In Kewal Krishan vs. Suraj Bhan and another, AIR 1980 SC 1780 the Apex Court has held that in cases exclusively triable by the Court of Sessions, the Magistrate has to merely ascertain whether a prima facie case exists for committal. If he finds that from the evidence there is sufficient ground to take cognizance against the accused in offences triable by Court of Sessions, he has no power to comprehensively make appreciation of the materials and come to a different conclusion.
11. In case of State of Gujarat vs. Girish Radhakrishnan Varde (supra) the Apex Court has laid down the steps to be taken by the Magistrate on a charge sheet filed by the Police in offence triable by Court of Sessions :
"13. But the instant matter arises out of a case which is based on a police report as a first information report had been lodged before the police at Deesa Police Station under Section 154 CrPC and, therefore, the investigation was conducted by the police authorities in terms of procedure prescribed under Chapter XII CrPC and thereafter charge-sheet was submitted. At this stage, the Chief Judicial Magistrate after submission of the charge-sheet appears to have entertained an application of the complainant for addition of three other sections into the charge-sheet, completely missing that if it were a complaint case lodged by the complainant before the Magistrate under Section 190(1)(a) CrPC, obviously the Magistrate had full authority and jurisdiction to conduct enquiry into the matter and if at any stage of the enquiry, the Magistrate thought it appropriate that other additional sections also were fit to be included, the Magistrate obviously would not be precluded from adding them after which the process of cognizance would be taken by the Magistrate and then the matter would be committed for trial before the appropriate court.
14. But if a case is registered by the police based on the FIR registered at the police station under Section 154 CrPC and not by way of a complaint under Section 190(1)(a) CrPC 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 charge-sheet 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 charge-sheet, 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 charge-sheet after investigation has been completed and charge-sheet has been submitted by the police.
15. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the Magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet and as already stated, the Magistrate in a case which is based on a police report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 CrPC as the case may be which means that after submission of the charge-sheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the charge-sheet."
12. From perusal of the law laid down by the Supreme Court in Kewal Krishan (supra) and State of Gujarat vs. Girish Radhakrishnan Varde (supra), it can be concluded that the Magistrate has no authority or jurisdiction to take cognizance on the charge sheet of offence under Section 302 IPC instead of 304 IPC.
13. In the case of Dhariwal Tobaco Products Ltd. (supra) the Apex Court has held that against the cognizance taken and the summoning order passed by the Magistrate, the inherent jurisdiction of the High Court under 482 CrPC can be invoked.
14. The Apex Court in paragraph 10 of its judgement in the case of Dhariwal Tobaco Products Ltd. (supra) has quoted the decision in G. Sagar Suri vs. State of U.P., AIR 2000 SC 754 with approval which is as under:
"10. We may notice that in G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] this Court has held : (SCC pp. 642-43, paras 7-8) "7. It was submitted by Mr Lalit, learned counsel for the second respondent that the appellants have already filed an application in the Court of Additional Judicial Magistrate for their discharge and that this Court should not interfere in the criminal proceedings which are at the threshold. We do not think that on filing of any application for discharge, the High Court cannot exercise its jurisdiction under Section 482 of the Code. In this connection, reference may be made to two decisions of this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400] and Ashok Chaturvedi v. Shitul H. Chanchani [(1998) 7 SCC 698 : 1998 SCC (Cri) 1704] wherein it has been specifically held that though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial.
8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
15. Thus, in view of the aforesaid judgments of the Apex Court, this Court is of the opinion that by passing the impugned order, the Magistrate has exceeded its jurisdiction and in the interest of justice this Court can interfere in an Application U/S 482 CrPC, notwithstanding the alternate remedy by way of filing a criminal revision is available to the applicant.
16. Accordingly, the instant application u/s 482 CrPC is allowed and the impugned order dated 25.03.2023 passed by the learned Chief Judicial Magistrate, Kanpur Dehat in Case No. 4555 of 2023, State of U.P. vs. Rajesh Singh and others, arising out of Case Crime No. 30 of 2022 is hereby set aside. The Magistrate shall pass further orders regarding committal of the case in accordance with law.
Order Date :- 20.7.2023 Brijesh Maurya