Allahabad High Court
Shiv Prakash Pathak And 3 Others vs State Of U.P. And Another on 17 September, 2024
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:152794 Judgment Reserved on:- 06.09.2024 Judgment Delivered on:- 17.09.2024 Court No. - 76 Case :- APPLICATION U/S 482 No. - 516 of 2018 Applicant :- Shiv Prakash Pathak And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashok Kumar Rai,Mangla Prasad Rai(Senior Adv.) Counsel for Opposite Party :- G.A.,Manu Pathak Hon'ble Raj Beer Singh,J.
1. Heard Sri Mangla Prasad, learned Senior Advocate, assisted by Sri Ashok Kumar Rai, learned counsel for the applicants, learned counsel for the informant/ opposite party no.2 and learned AGA for the State.
2. This application under Section 482 Cr.P.C. has been preferred for quashing of the entire proceedings, including cognizance/summoning order dated 18.02.2015, passed by the C.J.M., Kaushambi, in case F.R. No.14 of 2014 (Kavita Pathak Vs. Shiv Prakash Pathak and others), arising out of Case Crime No.193 of 2013, under Sections 498A, 312, 342, 406, 506 IPC, Police Station- Pura Mufti, District- Kaushambi, pending before the Court of C.J.M., Kaushambi.
3. It has been submitted by learned Senior Advocate that no case is made out against applicants and the impugned summoning order is against facts and law. It was stated that the informant / opposite party No.2 was involved in conspiracy of murder of her husband (brother of applicant No. 1) and in that connection a case was registered in the year 2013 and she was arrested, however, later on she was released on bail. The trial of said case is going on. She has lodged first information report of this case as a counterblast to said case. After investigation, police have submitted final report with conclusion that no case is made out. The informant has submitted a protest petition, which has been allowed by the trial Court vide impugned order dated 18.02.2015 and applicants have been summoned for offences under Sections 312, 342, 498A, 504, 506 IPC and it was also directed that the case shall proceed as a State case. Learned Senior Advocate submitted that on the basis of said protest petition, the court can not take cognizance under section 190(1)(b) CrPC and the case can not proceed as State case. The said protest petition can be registered as a complaint case but the summoning of applicants-accused and the direction of the trial court to proceed as State case, is against the law. In this connection learned Senior Advocate has referred following case laws:-
(i) Dharam Pal and others Vs. State of Haryana & Another 2013 (82) AllCriC 963
(ii) Ghan Shyam Singh and others Vs. State and Arun Kumar 2014 (87) All CriC 404
(iii) Naresh Pal Singh Vs. State of UP and others 2013 (83) AllCriC 911
4. Learned AGA and learned counsel for the informant have opposed the application and submitted that there is no illegality or perversity in the impugned order. The investigation was not conducted properly and final report was submitted without conducting proper investigation and thus, the informant has filed a protest petition. It was submitted that the Magistrate was authorised to ignore the conclusions of the final report and to summon the accused persons on the basis of protest petition by taking cognizance under section (190)(1)(b) CrPC. It was submitted that the applicants have rightly been summoned on the basis of protest petition and there is no illegality or perversity in the impugned order.
5. I have considered the rival submissions and perused the record.
6. Chapter XIV of Cr.P.C. deals with conditions requisite for initiation of proceedings and also the powers of cognizance of a Magistrate. Provisions of section 190 Cr.P.C. relevant for this case, are reproduced as under:
"190. (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."
7. It is well-settled that if magistrate finds that Police have not made proper investigation and submitted final report, it can direct police to make further investigation in the matter, or, if there is sufficient material, he can pass order taking cognizance and summoning accused. In case of Tula Ram Vs. Kishore Singh AIR 1977 SC 2401, the Apex court observed that Magistrate can ignore a final report submitted by Police including the conclusion and take cognizance of case under Section 190(1)(b) on the basis of material collected during investigation and issue process, or in the alternative, he may take cognizance of original complaint, examine the complainant and his witnesses and thereafter issue process to accused, if he is of opinion that case should be proceeded with. In case Dharam Pal and others (supra), the Hon'ble Apex Court held that 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. If he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police, in such an event, if the Magistrate decided 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. In case of Naresh Pal Singh (supra), this court has considered a number of judgments and held as under:
15. The power of a Magistrate to take cognizance of an offence under Section 190 (1) (b) of the Code even when the police report was to the effect that the investigation has not made out any offence against an accused has already been examined and set out by the Apex Court in Abninandan Jha and others v. Dinesh Misra, AIR 1968 SC 117 and H.S. Bains v. State, AIR 1980 SC 1883.
16. In the case of Abninandan Jha and others v. Dinesh Misra (supra) the question arose whether a Magistrate to whom a report under Section 173 (2) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the Police. This Court held that the Magistrate had 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 agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156 (3) and if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report.
17. In the case of H.S. Bains (supra) the Apex Court has pointed out that in the case of Abninandan Jha and others v. Dinesh Misra (supra) the reference to Section 190 (1) (c) was a mistake and it should have been Section 190 (1) (b). The position is, therefore, now well settled that upon receipt of a police report under Section 173 (2) a Magistrate is entitled to take cognizance of an offence under Section 190 (1) (b) of the Code even if the police report is to the effect that no case is made out against the accused.
18. In the case of Pakhando and others v. State of U.P. and another, 2001 (43) ACC 1096 a Division Bench has held that "where cognizance has been taken under Section 190 (1) (b) Cr.P.C. only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to sub-Section (2) of Section 202 Cr.P.C. shall have no application.''
8. In M/s India Carat Pvt. Ltd. Vs. State of Karnataka 1989 (26) ACC 280 (SC), the Supreme Court has observed that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused. Section 190(1)(b) Cr.P.C. does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion of making out a case against accused. Magistrate can ignore conclusion arrived at by Investigating Officer, independently applying his mind to the facts emergent from investigation and can take cognizance of case or in alternative he can take cognizance of original complaint and examine complainant and his witness and thereafter issue process to accused, if he is of opinion that the case should proceed. The observations made in M/s India Carat Pvt. Ltd. (supra), make it very clear that Magistrate if proceeds to take cognizance on Police report, material which can be examined by him would be such which has been collected during investigation. If Magistrate finds that Police has not properly made investigation and appropriate material has not been collected, it is always open to him to direct Police for further investigation but if Magistrate finds fault with investigation made by Police and still finds justification to proceed with the matter taking into account complaint made by complainant, in such case he has to examine complainant and his witness and thereafter issue process.
9. Thus, it is clear that while proceeding to issue process considering facts emergent from investigation and taking a different view than what has been reported by Police, Magistrate need not apply procedure laid down in section 200 and 202 Cr.P.C. However, if Magistrate finds lack of material with investigation of Police, option available to him is to take into account original complaint and if that is adopted by Magistrate, he is bound to follow procedure prescribed in Section 200 and 202 or taking cognizance, but he can not mix-up the material placed by complainant along with Protest Petition to take cognizance after rejecting Police Report but without following the procedure prescribed under Chapter XV. A similar view has also been expressed in Rakesh and another Vs. State of U.P. and another 2014 (13) SCC 133, where Court referred to and relied on the decision in H.S. Bains Vs. State (UT of Chandigarh) 1980 (4) SCC 631.
10. In case of Minu Kumari and another Vs. State of Bihar and others 2006 (4) SCC 359, Court held as under:
"11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take congnizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused."
11. This Court has also followed a similar view and in this connection reference may be made to case of Pakhando and others Vs. State of U.P. 2001 (43) ACC 1096, wherein 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 agree 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(1)(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(1)(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."
12. Thus, the contention that if upon investigation Police files final report for dropping proceedings and informant has filed a protest petition, the Magistrate can not proceed under section 190(1)(b) CrPC without taking recourse to provisions of section 200 and 202 CrPC, can not be accepted. The position of law is well settled that upon receipt of a police report under Section 173(2), a Magistrate / court is entitled to take cognizance of an offence under Section 190(1)(b) Cr.P.C. even if the police report is to the effect that no case is made out against the accused but for that purpose, the Magistrate has to take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. In such circumstances the satisfaction of Magistrate / Court must be based on material collected during investigation. In Mohd. Yusuf and Others vs. State of U.P. & Anr 2007 0 Supreme (All) 2080, it was observed that when the magistrate decides to take cognizance under section 190 (1) (b) Cr.P.C. 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.
13. In the instant matter, it is apparent from impugned order that after investigation the police have submitted closure report and the learned Magistrate took cognizance under section 190(1)(b) CrPC and summoned the applicants, on the basis of the protest petition but there is absolutely nothing that in the impugned cognizance / summoning order that the learned Magistrate has taken in to consideration the statements of the witnesses recorded by the Investigating officer in the case-diary and material collected during investigation. The learned Magistrate has merely observed that the police have submitted final report in collusion with accused persons and investigation was concluded only within a period of two and a half months. There is absolutely nothing to show that the learned Magistrate has considered statements of witnesses recorded during investigation and material collected during investigation. In view of these facts and circumstances, it is clear that the impugned order is not in accordance with law and thus, liable to be set aside.
14. The impugned order dated 18.02.2015 passed by the learned C.J.M., Kaushambi is set aside. The matter is remitted back to the court concerned to consider the matter and to pass an order afresh in accordance with law.
15. The application under section 482 CrPC is disposed of in above terms.
Order Date :- 17.9.2024 /SP/-