Allahabad High Court
Pramila vs State Of U.P. And Another on 23 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:118570 Reserved on 15.04.2024. Delivered on 23.07.2024. Court No. - 64 Case :- CRIMINAL REVISION No. - 2214 of 2023 Revisionist :- Pramila Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Vijay Prakash Chaturvedi Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Vijay Prakash Chaturvedi, the learned counsel for revisionist, the learned A.G.A. for State-opposite party 1 and Mr. Sunil Kumar Singh, the learned counsel representing opposite party 2.
2. Perused the record.
3. This criminal revision has been filed challenging the order dated 23.03.2023, passed by Civil Judge (Jr. Div.), Bansi, Siddharthnagar in Criminal Case No.73 of 2022 (State Vs. Rahul Pandey), under Sections 504, 506 IPC, police station Khesraha, district Siddharthnagar, whereby court below has allowed the application dated 15.03.2023 filed by charge-sheeted accused regarding maintainability of criminal proceedings.
4. Record shows that a first informant report dated 05.07.2022 was lodged by first informant/revisionist Pramila and was registered as Case Crime No.0073 of 2022, under Sections 147, 323, 354, 427, 452, 504, 506 IPC, police station Khesraha, district Siddharthnagar. In the aforesaid first information report two persons, namely, Rahul and Dileep have been nominated as named accused, whereas three un-known persons have also been arraigned as accused.
5. The gravamen of the allegations made in the first information report dated 05.07.2022 is to the effect that named accused along with others entered the house of the first informant and thereafter they are alleged to have not only dislodged the modesty of the prosecutrix by molesting her but also assaulted her.
6. After above mentioned first information report was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. On the basis of above and other material collected by him during course of investigation including the statement of witnesses examined under Section 161 CrPC as well as the mitigating circumstances that emerged during course of investigation, he came to the conclusion that criminality alleged to have been committed by one of the named accused as detailed in the first information report is fully established. He, thus opined to submit a police report (charge-sheet). Accordingly, Investigating Officer submitted the police report dated 27.11.2022 in terms of Section 173 (2) CrPC, whereby one of the named accused, namely, Rahul Pandey was charge-sheeted under Sections 504, 506 IPC.
7. Upon submission of aforementioned police report, an application dated 15.03.2023 was filed by the charge-sheeted accused disputing the very maintainability of the criminal proceedings. The concerned Magistrate proceeded to consider the aforementioned application filed by charge-sheeted accused and allowed the same, vide order dated 23.03.2023. Consequently, the criminal proceedings initiated by the first informant/revisionist stood terminated.
8. Thus, feeling aggrieved by the above order dated 23.03.2023, passed by Civil Judge (Jr. Div.), Bansi, Siddharthnagar, the revisionist who is the first informant of above-mentioned case crime number, has now approached this Court by means of present criminal revision.
9. Mr. Vijay Prakash Chaturvedi, the learned counsel for revisionist submits that the order impugned in present criminal revision is manifestly illegal and without jurisdiction and therefore liable to be set aside by this Court. According to the learned counsel for revisionist once the police report in terms of Section 173 (2) CrPC (charge-sheet) was submitted then the concerned Magistrate was required to exercise his jurisdiction under Section 190 CrPC. Referring to the provisions contained in Section 190 CrPC, he submits that at this stage the Magistrate has no jurisdiction to hear the accused and decide his innocence or the maintainability of the criminal proceedings.
10. It is next contended that an accused has no right to be heard till he has been summoned by a court. Admittedly, no cognizance taking order was passed by the concerned Magistrate on the police report dated 27.11.2022 nor the charge-sheeted accused had been previously summoned by court below. As such, the charge-sheeted accused had no locus to file an application regarding maintainability of the criminal proceedings before court below at the pre-cognizance/pre-summoning stage. Remedy of the charge-sheeted accused lies in filing an application under Section 482 CrPC before the High Court after he was summoned by court below. On the above conspectus, he therefore contends that the order impugned in present criminal revision is un-sustainable in law and consequently liable to be set aside by this Court.
11. Per contra, the learned A.G.A. for State-opposite party-1 does not oppose the present criminal revision.
12. Mr. Sunil Kumar Singh, the learned counsel representing opposite party 2, on the other hand, has vehemently opposed the present criminal revision. He submits that from perusal of the order impugned in present criminal revision dated 23.03.2023 passed by court below it is apparent that court below has allowed the application dated 15.03.2023 filed by the charge-sheeted accused regarding maintainability of the present criminal proceeding initiated by the first informant on cogent grounds. Since the grounds considered by the court below while passing the order dated 23.03.2023 remain intact therefore, the impugned order is not liable to be interfered with by this Court. The order impugned in present criminal revision is not only just and legal but also equitable in the facts and circumstances of the case. It is thus urged that no good ground has emerged so as to warrant interference by this Court. The present criminal revision is thus liable to be dismissed.
13. Having heard the learned counsel for revisionist, the learned A.G.A. for State-opposite party 1, Mr. Sunil Kumar Singh, the learned counsel representing opposite party 2 and upon perusal of record this Court finds that Investigating Officer upon completion of investigation of concerned case crime number in terms of Chapter XII CrPC has submitted the police report dated 27.11.2022 under Section 173 (2) CrPC. By means of aforesaid police report, one of the named accused, namely, Rahul Pandey was charge-sheeted under Sections 504, 506 IPC. Under the Code i.e. CrPC, upon submission of a police report, a Magistrate is required to consider such police report as per provisions contained in Section 190 CrPC. For ready reference, Section 190 CrPC is reproduced herein-under :
"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."
14. The Magistrate is not bound by the police report. There are various options available to the Magistrate upon submission of police report. The same have been dealt with by the Apex Court in Vishnu Kumar Tiwari Vs. State of U.P. and Another, (2019) 8 SCC 27.
15. A learned single Judge of this Court in Hari Ram Vs. State of U.P. and Another, 2016 ADJ Online, 0185 (Criminal Revision No.695 of 2001) has also considered the aforesaid aspect in detail. Paragraphs 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the said report are relevant for the controversy in hand, which are accordingly extracted herein-under :
"19. This Court has also followed a similar line and some authorities, relevant in this regard, may be noticed for reference.
20. In Pakhando and others Vs. State of U.P. (supra), a Division Bench of this Court after considering Section 190 Cr.P.C. has held that if upon investigation Police comes to conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify forwarding of accused for trial and submits final report for dropping proceedings, Magistrate shall have following four courses and may adopt any one of them:
(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant;
(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 or unearthed by the police, there is sufficient ground to proceed; or (III) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (IV) He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(I)(b) 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 decide whether complaint should be dismissed or process should be issued.
21. Thus the "material" which can be examined by Magistrate when Police submitted final report and upon notice issued to complainant, Protest Petition is filed along with some material by complainant, is confined to investigation only. When matter has been investigated by Police after registering a report, Magistrate obviously is not proceeding according to procedure prescribed in Chapter XV. I find that it would not be appropriate for Magistrate not to follow procedure under Section 200 and 202 Cr.P.C. but straightway relying on affidavits filed before him by complainant along with Protest Petition, take cognizance and summon accused after rejecting Police Report. This is not legal and permissible.
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 ''izLrqr izksVsLV izkFkZuki= o vfHkys[kh; lk{; ds vk/kkj ij^^ 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."
16. The Magistrate, while examining the police report under Section 173 (2) CrPC at the time of taking cognizance can neither add nor substract a Section under which an accused has been charge-sheeted. Reference in this regard be made to the judgment of Supreme Court in State of Gujarat VS. Girish Radhakrishnan Varde, (2014) 3 SCC 659.
17. It is also well settled that the Magistrate can drop the police report submitted under Section 173(2) Cr.P.C., whereby the accused have been charge sheeted leading to the termination of criminal proceedings.
18. The issue as to whether an accused has a right to be heard before he has been summoned by Court is no longer res-integra and stands settled by a Full Bench judgment of this Court in Father Thomas Vs. State of U.P. and Others, 2010 SCC OnLine All 2438.
19. In the present case, court below upon receipt of the aforesaid police report had neither taken cognizance nor as a consequence of the cognizance so taken had summoned the charge-sheeted accused. As such, the accused has no right to be heard at the pre-cognizance/pre-summoning stage. The concerned Magistrate has not even referred to the provisions under which the application dated 15.03.2023 was filed by the charge-sheeted accused questioning the maintainability of the criminal proceeding, nor has he mentioned the Section under which the said application can be considered by the court below/or has been considered by Court below.
20. In view of the discussions made above, this Court finds that the order impugned dated 23.03.2023, passed by Civil Judge (Jr. Div.), Bansi, Siddharthnagar is not only illegal but also in excess of jurisdiction. Thus Court below, while passing the impugned order, has not only committed a jurisdictional error but has exercised it's jurisdiction with material irregularity, which has vitiated the same and warrants interference by this Court.
21. As a result, present criminal revision succeeds and is liable to be allowed.
22. It is, accordingly, allowed.
23. The order impugned dated 23.03.2023, passed by Civil Judge (Jr. Div.), Bansi, Siddharthnagar in Criminal Case No.73 of 2022 (State Vs. Rahul Pandey) is set aside. The matter is remitted to the court below for adjudication afresh in the light of the observation made herein-above. Necessary exercise shall be completed within a period of three months from the date of production of a certified copy of this order. It will not be out of place to mention here that an accused has a right to challenge the police report/cognizance taking order/summoning order by filing a revision petition or an application under Section 482 CrPC before this Court and in the alternative can seek discharge under Section 239 CrPC but only after an accused has been summoned by court below. The order impugned has been passed at the behest of the charge-sheet at pre-cognizance stage and on the application of the charge-sheeted accused, which is otherwise not maintainable. Necessary exercise shall be completed within a period of three months from the date of production of a certified copy of this order.
24. In the facts and circumstances of the case, there shall be no order as to costs.
Order Date :- 23.7.2024.
Rks.