Allahabad High Court
Padam @ Aasif Raza vs State Of U.P.And Another on 11 December, 2019
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 76 A.F.R. Case :- APPLICATION U/S 482 No. - 45539 of 2019 Applicant :- Padam @ Aasif Raza Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Aditya Vardhan Singh Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Aditya Vardhan Singh, learned counsel for the applicant and Mr. Prashant Kumar, learned A.G.A. for the State.
2. This application under Section 482 Cr.P.C. has been filed with a prayer to allow this application and direct the learned Additional Chief Judicial Magistrate, Court No. 02, Moradabad to register the case, arising out of Case Crime No. 199(c) of 2016, under Sections 452, 323, 504, 506 I.P.C., Police Station - Behjoi, District Moradabad as a complaint case.
3. Brief facts of the case are that opposite party no. 2, namely, Sabir lodged an F.I.R. on 13.03.2016 against the present applicant and five other accused persons under Sections 395, 397 I.P.C., with allegations that on 24.01.2016, at about 07:00 p.m., when the informant was having dinner at his house, the accused persons, namely, Sachin, Padam (applicant herein), Virendra, Kiran, Bhagwan and Narayandas armed with lathi, stick and country-made pistol entered into the house of the informant stating that he had lodged a case against them and started beating him, hurling abuses. They also threatened to kill him and hit him by the butt of the country made pistol due to which informant's teeth were broken. They also snatched thousand rupees from his pocket. After hearing the informant's screaming, Jogendra Singh and Jogesh Sharma as also other villagers came to rescue the informant. It has also been alleged that about 8 months prior, the aforesaid persons had beaten the informant and his son Harun and has also taken away cash and goods from his house.
4. After investigation, a final report was submitted on 21.03.2016. Thereafter, respondent no. 2 filed a protest petition on 08.11.2016 against the aforesaid final report with a prayer to summon the accused persons. In support of the protest petition, affidavits of Jogendra Singh and his wife Musrin were also filed. It has been submitted by learned counsel for the applicant that vide order dated 18.08.2017, learned Magistrate has rejected the final report and has summoned the accused persons and further directed the case to be registered as a state case.
5. It has been argued by learned counsel for the applicant that the Magistrate after considering the protest petition and the affidavits had the option to proceed in the following manner:
(i) He may agree with the conclusions arrived at by the police, accept the report and drop the proceedings. But, before doing so, he shall give an opportunity of hearing to the complainant; or
(ii) He may take cognizance under Section 190(I)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed; or
(iii) He may order further investigation; or
(iv) He may decide to take cognizance under Section 190(I)(b) upon the protest petition treating the same as complaint and proceed under Sections 200 and 202 Cr.P.C. and thereafter, decide whether complaint should be dismissed or process should be issued.
6. It has been submitted that in the instant case, cognizance was taken on the basis of protest petition and accompanying affidavits. However, the learned Magistrate should have adopted the procedure of complaint case as referred to in Chapter XV of Code of Criminal Procedure and should have recorded the statements of complainant and witnesses who had filed their submissions in support of the protest petition.
7. In support of his case learned counsel for the applicant has placed reliance upon the following judgments :
1. Mohammed Yusuf Son of Muzaffar.....Vs. State of Uttar Pradesh and Zeeshan reported in 2008 CriLJ 493;
2. Subhash Singh & Ors. Vs. State of U.P. & Anr. reported in 2011(2) JIC 827 (All)(LB);
3. Hari Ram Vs. State of U.P. and another (Criminal Revision No. 695 of 2001, decided on 06.05.2016) reported in 2016 Lawsuit (All) 1359 ;
4. Ramji Lal Vs. State of U.P. And Others (Criminal Misc. Writ Petition No. 6485 of 2004, decided on 15.03.2019).
8. Per contra, Mr. Prashant Kumar, learned A.G.A. for the State has vehemently opposed the submissions made by the learned counsel for the applicant by submitting that the learned Magistrate on the basis of the complaint, protest petition filed by the complainant against the final report as well as the affidavits of witnesses, has rightly directed the present case to be registered as a state case. There is no illegality and infirmity in the order passed by the concerned Magistrate, therefore, the same cannot be interfered with by this Court and the present application is liable to be rejected.
9. Before coming to the merits of the submissions made by the learned counsel for the parties it would be worthwhile to reproduce Section 190 Cr.P.C., which is quoted hereinbelow:
"190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try."
10. Thus, cognizance can be taken by the Magistrate upon (a)receipt of a complaint disclosing facts constituting commission of an offence (b)upon a police report disclosing such facts or (c)on his own knowledge.
11. A bare perusal of Clause (b) above, would show that the Magistrate can take cognizance of any offence, irrespective of whether it is a cognizable offence or a non-cognizable offence upon a police report disclosing such facts as would constitute commission of an offence. The foundation of the jurisdiction of the Magistrate for taking cognizance of an offence does not depend upon the validity or otherwise of an investigation carried out by the police. It depends only upon the set of facts and circumstances placed before the Court, from which the Court comes to a conclusion that they constitute commission of an offence.
12. If the primary requirement is satisfied, an FIR is to be registered and the criminal law is set in motion and the officer-in-charge of the police station takes up the investigation.
13. Further perusal of the aforesaid provisions it is clear that a Magistrate to whom a report under Section 173 (1) Cr.P.C. had been submitted to the effect that no case has been made out against the accused, can not direct the police to file a charge-sheet on his disagreeing with that report. The use of the words `may take cognizance of any offence' in sub-section (1) of Section 190 Cr.P.C. imports the exercise of `judicial discretion' and the Magistrate, who receives the report under Section 173 Cr.P.C., will have to consider the said report and judicially take a decision whether or not to take cognizance of the offence. It is also clear that the the Magistrate has no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agrees with the report that there is no case made out for issuing process to the accused he may accept the report and close the proceedings. If he comes to the conclusion that further investigation is necessary he may make an order to that effect under Section 156(3) Cr.P.C. It is further clear that if ultimately the Magistrate is of the opinion that the facts set out in the police report constituted an offence he can take cognizance thereof, notwithstanding contrary opinion of the police expressed in the report.
14. In para (21) of Mehmood Ul Rehman v. Khazir Mohammad Tunda and others reported in (2015) 12 SCC 420, the Apex Court has made a fine distinction between taking cognizance based upon charge sheet filed by the police under Section 190(1)(b) Cr.P.C. and a private complaint under Section 190(1)(a) Cr.P.C. and held as under:-
"Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)( c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected."
15. For ready reference, paragraph-11 of the judgment of this Court in the case of Mohammed Yusuf (supra) reads as follows:
"11. Where the Magistrate decides to take cognizance under Section 190(1)(b) ignoring the conclusions reached at by the Investigating Officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigation Officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Sections 200 and 202 Cr.P.C. The Magistrate could not take cognizance under Section 190(1)(b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taken into account extraneous material i.e. protest petition and affidavits while taking cognizance under Section 190(1)(b) Cr.P.C. the impugned order is vitiated."
16. Paragraphs nos. 3 and 4 of the judgment of this Court in the case of Subhash Singh (supra), which is relevant for deciding the present application is quoted herein-under:
"3. Upon perusal of the order impugned I find that the learned Magistrate has considered the record, protest application, affidavit as well as case diary and some other documents also, which may be material of the police report and thereafter having found investigation as not proper, he rejected the final report. It is settled law that once after submission of the final report, the Magistrate takes cognizance of offence on the basis of protest application, keeping in view the material therein, he has to proceed with the case as a complaint case.
4. Since the learned Magistrate has considered the case diary also and observed that the Investigating Officer has not recorded the statement of witnesses properly, I am of the view that he has considered the case diary also, whereas the learned Magistrate has to clear himself as to whether he has to proceed on the basis of material available in the case diary or on the basis of material of the protest application, because these two different mode of considerations provide two different procedure of trial, therefore, I hereby quash the order impugned dated 5th of April, 2011 with the direction to the learned Magistrate, first to clear himself as to whether he has to proceed on the basis of protest application or on the basis of case diary, and then proceed accordingly. The Magistrate is at liberty to proceed to his own wisdom".
17. Lastly, paragraph nos. 22 to 28 of the of the judgment of this Court in the case of Hari Ram (supra) are also quoted herein-below:
"22. In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294, Police submitted final report which was not accepted by Magistrate, not on the basis of material collected by Police, but, relying on Protest Petition and accompanying affidavit Magistrate issued process. Court disapproved the aforesaid procedure adopted by Magistrate and said:
"Where the magistrate decides to take cognizance under section 190 (1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under section 190 (1) (b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e. protest petition and affidavits while taking cognizance under section 190 (1) (b) Cr.P.C. the impugned order is vitiated." (emphasis added)
23. In Kallu and others Vs. State of U.P. 2010 (69) ACC 780, Court said:
"Therefore, in present case also, if the material in the case diary was not sufficient for summoning the accused persons to face the trial, then the protest petition filed by the complainant against the final report ought to have been registered as complaint and after following the procedure laid down in section 200 and 202 Cr.P.C."
24. Court further held:
"If after taking evidence under section 200 and 202 Cr.P.C., the magistrate decides to take cognizance against the accused persons, final report has to be rejected, but in any case, cognizance cannot be taken merely on the basis of affidavits or other material filed by the complainant in support of the protest petition against final report without following the procedure laid down under Chapter XV Cr.P.C., if the material in the case diary is not sufficient to take cognizance."(emphasis added)
25. In Mitrasen Yadav Vs. State of U.P. 2010 (69) ACC 540, Court said that on the basis of Protest Petition and documents filed therewith, no cognizance under Section 190(1)(b) Cr.P.C. can be taken.
26. In Criminal Revision No. 1601 of 2015 (Mukeem and 2 others Vs. State of U.P. and another) decided on 07.08.2015, Court while deprecating procedure followed by Magistrate by relying on Protest Petition and its documents, without following procedure of complaint, said:
"The impugned order shows that the Magistrate summoned accused persons presuming that oral evidence on behalf of first informant was adduced on protest petition, which is possible only when the protest petition was ordered to be treated as a complaint. The record shows that neither protest petition was ordered to be registered as complaint nor any oral evidence of the witnesses was recorded. Summoning of the accused persons on the basis of the oral evidence indicates that the Magistrate was satisfied with the fact that in evidence collected by the I.O, there was no sufficient material for taking cognizance. The learned Magistrate has also observed that the I.O. has committed a mistake in not recording the evidence of other witnesses. Summoning is also based on facts mentioned in the protest petition and documentary evidence, as mentioned in the order impugned which is erroneous in view of the law cited above." (emphasis added)
27. In Writ Petition- Misc. Single No. 3776 of 2012 (Mohammad Shafiq Khan and others Vs. State of U.P. and others) decided on 24.03.2014, Court, in para 9, held as under:
"9. Therefore, it is clear from the above that the Magistrate on the basis of protest petition can reject the final report, he may treat the protest petition as complaint, he may also direct for further investigation. But in the facts of this case the Magistrate while rejecting the final report has also taken into consideration the affidavits filed along with protest petition and this approach of the Magistrate was not in accordance with law." (emphasis added)
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."
18. In the light of the judgments of the Apex Court as well as this Court, referred to above, it is explicitly clear that the contention raised on behalf of the applicant has substance. The impugned order passed by the concerned Magistrate is cryptic and does not stand the test laid down by the Apex Court as well as this Court. In the present case also, the concerned Magistrate has not referred to any material/documents and oral as well as documentary evidence collected by the Investigating Officer during the course of the investigation and the same has been placed before the concerned Magistrate. Apart from the above, the concerned Magistrate has rejected the final report submitted by the Investigating Officer only on the basis of facts stated in the protest petition filed by opposite party no.2 and considering the facts of the protest petition and affidavits of the witnesses produced before him, the concerned Magistrate has issued notice to the applicant. Such affidavits would not amount to a statement recorded by the Magistrate under Section 200 and 202 Cr.P.C. The concerned Magistrate has not recorded any reasons while rejecting the final report and he has also not mentioned anything in that regard. Only in view of the affidavits produced before him along with Protest Petition, the concerned Magistrate has found that the final report is liable to be rejected and accused-applicant would be summoned. The concerned Magistrate has failed to appreciate that neither acceptance nor non-acceptance of the police report can be termed as an administrative function. Since it is after application of judicial mind and examination of the material submitted along with the report under S. 173 Cr.P.C., the Magistrate makes the order under Section 190 Cr.P.C. Such lethargic approach of the concerned Magistrate, as per my view, is contrary to what has been laid down in the above authorities and the same cannot be legally sustained.
19. In view of the above discussion, the application u/S 482 Cr.P.C. succeeds and is allowed. The impugned order dated 18.08.2017 is hereby set aside and the matter is remanded to the concerned Magistrate to take decision afresh in accordance with observations made herein above.
Order Date :- 11.12.2019 Priya