Allahabad High Court
Sandeep Kumar Yadav vs State Of U.P. on 8 January, 2020
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 13 Case :- U/S 482/378/407 No. - 2267 of 2009 Applicant :- Sandeep Kumar Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Nisha Srivastava,Surendra Kumar Counsel for Opposite Party :- G.A.,Upendra Kumar Awasthi Hon'ble Dinesh Kumar Singh,J.
1. Present petition under Section 482 CrPC has been filed for quashing of the order dated 03.06.2009 passed by the Additional Chief Judicial Magistrate, Court No.11, Barabanki in Case No./Final Report No.64 of 2009 whereby the learned Magistrate had summoned the petitioners under Sections 323, 352, 392, 504, 506 IPC treating the protest petition of respondent No. 2 as a complaint.
2. Respondent No.2, the complainant gave an application to the Superintendent of Police, Barabanki on 02.01.2008 alleging that the complainant belonged to Scheduled Caste community. He had four shops situated at Fatehpur-Mahmudabad Road. The petitioners were the tenant of those shops. The petitioners had stopped paying the rent since July, 2004. When the complainant/respondent No.2 demanded the rent, the petitioners-accused became aggressive and said that they would not pay the rent. It was alleged that the complainant was threatened by the petitioners of dire consequences if he would come again for demanding rent from them. It was further said that a report of the incident was given at the police station and to the Superintendent of Police on 20.10.2004. Again the complainant/respondent No.2 went to ask rent from the petitioners on 05.11.2004 at 9:00 A.M. then the petitioners-accused assaulted him by fists and kicks and snatched his wallet and Rs.1500. They also abused the complainant/respondent No.2 by his caste. It was further said that the respondent No.2 had given an application on 07.11.2007 to the Superintendent of Police, Barabanki but no action was taken. The petitioners-accused were neither vacating the shops nor giving the rent. It was also alleged that the petitioners-accused had connections with unsocial elements and goons and, the complainant feared for his life and property.
3. On the aforesaid application, the Superintendent of Police directed the Station House Officer of the police station to register an FIR and investigate the crime. On the aforesaid direction, the FIR was registered against the petitioners at Case Crime No.4 of 2008 under Sections 352, 504, 506, 323, 392 IPC and 3(1)(x) of the S.C./S.T. Act. On 3.1.2008. Time and date of the incident was 05.11.2004 at 9:00 A.M. and the time and date of information was 03.11.2008 at 10:15 P.M.
4. The petitioners had filed a civil suit being Original Suit No.644 of 2004 in the Court of Additional Civil Judge (J.D.), Court No.20 Barabanki for a decree of permanent injunction against respondent No.2 to the effect that he should be restrained from dispossessing the petitioners from shops except in accordance with law and, he should not interfere with their possession. They also filed an application for interim injunction. It appears that the Court had appointed a Court Commissioner and, the Court Commissioner in his report stated that the petitioners were in possession of the shops and, they were doing their respective businesses from the shops. After considering the aforesaid report and the pleadings of the parties, learned Civil Judge granted interim injunction in favour of the petitioners vide order dated 19.04.2008.
5. It is relevant to mention here that the incident alleged to have taken place on 05.11.2004 and according to respondent No.2 he gave an application of the said incident to the Superintendent of Police on 07.11.2007 for the first time and thereafter, on 02.01.2008 on which the order was passed to register an FIR and investigate the offence. The Circle Officer investigated the offence and after recording the several statements of the villagers which have been placed on record with the petition, filed Final Report No.7 of 2008 on 15.02.2008. The Circle Officer in his final report said that there was a civil suit pending between the petitioners and the complainant in respect of the shops. The accused were the tenant of the shops. False complaint was lodged by respondent No.2 for ulterior motive to put pressure on the petitioners to get the shops vacated from them. No offence was found to have been committed by the accused. A separate report under Section 182 CrPC was also filed for filing false complaint by respondent no.2 against the petitioners. Respondent No.2 filed a protest petition to the said final report submitted by the Circle Officer stating therein that on the basis of the application submitted by him to the Superintendent of Police, FIR was registered. However, his statement and the statements of his witnesses were not taken by the investigating officer and, on the basis of the affidavits submitted by the witnesses final report was filed and, a separate report was submitted for taking action against respondent No.2 under Section 182 CrPC.
6. Learned Magistrate vide order dated 23.01.2009 rejected the final report and report under Section 182 CrPC and treated this protest petition as complaint and fixed the case on 04.03.2009 for recording the statement of the complainant under Section 200 CrPC. Learned Magistrate was of the view that from perusal of the case diary, he did not find that the statement of the complainant was recorded. Learned Magistrate after recording the statement of the complainant and the witnesses under Sections 200 and 202 CrPC respectively vide order dated 03.06.2009 had summoned the petitioners under Sections 323, 352, 392, 504, 506 IPC.
7. Heard Ms.Nisha Srivastava, learned counsel for the petitioners, Mr. Upendra Kumar Awasthi, learned counsel for respondent No.2 and learned A.G.A for the State.
8. No counter affidavit has been filed either by the State or by respondent No.2.
9. Learned counsel for the petitioners has submitted that the FIR was registered on 03.01.2008 for an incident which allegedly took place on 05.11.2004. It has been further submitted that after Bahujan Samajwadi Party came to the power in 2007, the respondent no.2 gave an application to the Superintendent of Police on 03.10.2008 for the incident which allegedly took place on 05.11.2004. The sole purpose of filing the FIR against the petitioners was to pressurize them to vacate the shops occupied by them for which a civil dispute was pending between the parties. She has further submitted that the Circle Officer after thorough investigation of the offence, did not find any offence to have been committed and, rightly commented that the FIR was registered on false allegations in order to put pressure on the petitioners to vacate the shops which they were occupying and, therefore, the Investigating Officer submitted the final report and filed a separate report under Section 182 CrPC for taking action against respondent no.2. She has submitted that the protest petition was not a complaint as defined under Section 2(d) of the CrPC and, the learned magistrate had committed gross error of law and facts in rejecting the final report and treating the protest petition as complaint case. She has further submitted that the whole proceedings are nothing but gross abuse of process of law and court and are required to be quashed and the petition be allowed.
10. On the other hand, learned counsel for respondent No.2 had submitted that on receipt of final report after investigation, learned Magistrate had four options i.e.
(i) he could have accepted the report and, closed the case;
(ii) he could have taken cognizance of offence on the basis of evidence available in the case diary against the accused, if he was satisfied that the conclusion arrived at by the investigating officer was not correct;
(iii) he could have ordered for further investigation, if he was satisfied that the investigation was made in a perfunctory manner; and
(iv) he could have treated the protest petition as a complaint and adopted the procedure under Chapter XV of the code.
11. The Learned Magistrate had consciously opted for forth option and he had not committed any illegality. He has, therefore, submitted that this petition is without any merit and substance which ought to be dismissed by this Court.
12. I have heard the counsels for the parties and perused the record.
13. Short question which arises for consideration in the present case is that whether the protest petition filed by respondent No.2 could have been treated as complaint as defined under Section 2(d) of the CrPC. Contents of the protest petition were only that the investigating officer did not take the statements of the complainant and his witnesses and, therefore, the final report filed by the complainant should be rejected. This protest petition did not have any other material or name of the witnesses. It is not in doubt that the Magistrate can treat a protest petition as complaint provided the protest petition satisfies the ingredients of a complaint. Learned Magistrate can treat the protest petition as complaint only after considering the facts and circumstances of the case and the material which is made available to him by the complainant in the protest petition.
14. The Supreme Court in the case of Vishnu Kumar Tiwari v. State of U.P., (2019) 8 SCC 27 has held that if the material presented with the protest petition is such which persuade the learned Magistrate to disagree with the conclusion arrived at by the investigating officer, learned Magistrate can take cognizance under Section 190(1)(b) of the CrPC. However, learned Magistrate cannot be forced to treat a protest petition as a complaint, if after considering the final report, statement of the witnesses available in the case diary and and material made available in the protest petition he is of the opinion that no case is made out. A private complaint is to contain complete list of witnesses to be examined.
Para 42 to 46 of the aforesaid judgment are extracted under:-
"42. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Sections 200 and 202 of the Code if the latter section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the investigating officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.
43. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the protest petition. In Mahabir Prasad Agarwala v. State [Mahabir Prasad Agarwala v. State, 1957 SCC OnLine Ori 5 : AIR 1958 Ori 11] , a learned Judge of the High Court of Orissa, took the view that a protest petition is in the nature of a complaint and should be examined in accordance with the provisions of Chapter XVI of the Criminal Procedure Code. We, however, also noticed that in Qasim v. State [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , a learned Single Judge of the High Court of Judicature at Allahabad, inter alia, held as follows: (Qasim case [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , SCC OnLine All para 6) "6. ... In Abhinandan Jha [Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 : 1968 Cri LJ 97 : (1967) 3 SCR 668] also what was observed was "it is not very clear as to whether the Magistrate has chosen to treat the protest petition as complaint". This observation would not mean that every protest petition must necessarily be treated as a complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made under Section 200 CrPC. If the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case."
(emphasis supplied)
44. We may also notice that in Veerappa v. Bhimareddappa [Veerappa v. Bhimareddappa, 2001 SCC OnLine Kar 447 : 2002 Cri LJ 2150] , the High Court of Karnataka observed as follows: (SCC OnLine Kar para 9) "9. From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate under Section 200 CrPC, but, has approached the police only and where the police after investigation have filed the ''B' report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) CrPC on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) CrPC, and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) CrPC. Instead, if it is to be simply styled as a protest petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 CrPC."
45. "Complaint" is defined in Section 2(d) of the Code as follows:
"2. (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.--A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;"
46. If a protest petition fulfils the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or is liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections of the second respondent against the final report."
15. Coming to the facts of the present case, the protest petition filed by the respondent was only to the effect that the Investigation Officer did not take his statement and statements of his witnesses and, therefore, the final report submitted should not be accepted. This protest petition did not satisfy the requirement of complaint. It did not contain required averments which could have constituted an offence. No material was placed with the protest petition neither list of witnesses was given. Thus, the protest petition filed by respondent No.2 could not have been treated as a complaint. If the learned Magistrate was of the view that the Investigating Officer did not conduct the investigation properly, he could have directed the investigating officer to further investigate the matter. From the order passed by the learned Magistrate, it appears that the Magistrate had not properly applied his judicial mind to the facts and material available on record. He in a perfunctory manner, had proceeded to reject the well investigated final report only on the ground that the statement of the complainant was not recorded by the investigating officer and then proceeded to treat the protest petition as a complaint without it having ingredients of the complaint.
16. Facts of the present case are also such that for an incident which allegedly took place on 05.11.2004, a complaint was given on 02.01.2008 and FIR was registered on 03.01.2008. Admittedly, the parties were litigating before the civil Court and, a decree of permanent injunction had been passed against respondent No.2 vide judgment and decree dated 16.05.2013 passed in the Original Suit No.64 of 2004. The conclusion arrived at by the investigating officer that a false complaint was filed against the petitioners in order to pressurize them to vacate the shops, was well founded after considering the evidence collected by the investigating officer during the course of investigation. Learned Magistrate had not given due consideration to the final report and had rejected his summarily without assigning proper reasons for it.
17. In view of the aforesaid, this petition is allowed and the proceedings and order dated 03.06.2009 passed by Additional Chief Judicial Magistrate, Court No.11, Barabanki in Final Report No.64 of 2009 whereby the learned Magistrate has summoned the petitioners under Sections 323, 352, 392, 504, 506 IPC are hereby quashed.
Order Date 08.01.2020 prateek