Allahabad High Court
Dhiraj Singh vs State And Others on 8 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1594
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- CRIMINAL REVISION No. - 466 of 1994 Revisionist :- Dhiraj Singh Opposite Party :- State And Others Counsel for Revisionist :- K.D. Tripathi Counsel for Opposite Party :- A.G.A. Hon'ble Sudhir Agarwal,J.
1. Heard Sri K.D. Tripathi, learned counsel for revisionist and perused the material available on record.
2. This criminal revision under Section 397/401 Cr.P.C., has been filed aggrieved by judgement and order dated 10.02.1994 passed by Sri Onkar Nath Gupta, Ivth Additional Sessions Judge, Saharanpur, in Criminal Revision No. 58 of 1993, Surendra and Others vs. State of U.P. and Others, allowing revision of opposite parties- 2 to 10 and setting aside order dated 28.01.1993 passed by Vth Additional Chief Judicial Magistrate, Saharanpur in Criminal Case No. 87 of 1993, State vs. Surendra and Others whereby learned Magistrate rejected the final report and summoning accused opposite parties-2 to 10 under Sections 147, 323, 504, 506, 427 IPC.
3. A final report was submitted by police whereagainst protest petition was filed by complainant. Magistrate concerned after considering the protest petition and material placed before it, has proceeded as a Police case and issue summons to revisionists under Sections 147, 323, 504, 506, 427 IPC vide order dated 28.01.1993 whereagainst accused-revisionist has preferred Criminal Revision No 58 of 1993 which has been allowed vide judgement dated 10.02.1994 passed by Sri Onkar Nath Gupta, Ivth Additional Sessions Judge, Saharanpur and the order passed by Magistrate concerned summoning accused-opposite parties 2 to 10 has been set aside.
4. When questioned, learned counsel for revisionist could not dispute that Magistrate concerned has considered protest petition along with other evidence placed by complainant and it could not proceed with the matter as a police case but as complaint case.
5. Chapter XIV, Cr.P.C. deals with conditions requisite for initiation of proceedings and also the powers of cognizance of a Magistrate. Section 190, relevant for our purpose, is 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."
6. Chapter XV, thereafter has four Sections, i.e., Section 200 to 203, which deal with complaint to Magistrate. Chapter XVI deals with commencement of proceedings before Magistrate and Section 204 empowers a Magistrate to issue summons or a warrant, as the case may be, to secure attendance of an accused, if in the opinion of Magistrate, there is sufficient ground to proceed and take cognizance of offence.
7. If magistrate finds that Police has 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.
8. As long back as in 1977, Supreme Court in Tula Ram Vs. Kishore Singh AIR 1977 SC 2401 said 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.
9. In M/s India Carat Pvt. Ltd. Vs. State of Karnataka 1989 (26) ACC 280 (SC), Supreme Court has observed in para 16 of judgment 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) 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. Following observations of Court fortify what is observed above:
"16. 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, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.
17. The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). It has been held in Tula Ram and others Vs. Kisohre Singh 1978 (1) SCR 615 that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with." (emphasis added)
10. The observations made in para 16 and 17 in M/s India Carat Pvt. Ltd. Vs. State of Karnataka (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.
11. In Gangadhar Janardan Mhatre vs. State of Maharashtra and others 2004 (7) SCC 768, the Court reiterating above view said as under:
"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 119(1)(b) and direct the issue of process to the accused." (emphasis added)
12. Having said so, Court has also made it 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. 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 for 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 15.
13. 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.
14. In Minu Kumari and another Vs. State of Bihar and others 2006 (4) SCC 359, Court said 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." (Emphasis Added)
15. In Sunil Bharti Mittal Vs. Central Bureau of Investigation 2015 (4) SCC 609, Court said:
"... even if a person is not named as an accused by the police in the final report submitted, the Court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (See Union of India v. Prakash P. Hinduja and Anr. 2003 (6) SCC 195. Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer."
16. This Court has also followed a similar line and some authorities, relevant in this regard, may be noticed for reference.
17. In Pakhando and others Vs. State of U.P. 2001 (43) ACC 1096, 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.
18. 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.
19. 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)
20. 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."
21. 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)
22. 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.
23. 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)
24. 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)
25. Looking to exposition of law, discussed above, I find that in the present case, Magistrate should have proceeded as a complaint case and not as a Police case and in my view, Revisional Court has rightly set aside summoning order passed by Magistrate concerned.
26 In view thereof, I do not find any manifest error in the impugned Revisional order so as to justify any interference.
27. Dismissed accordingly.
28. Certify this judgment to the lower Court immediately.
Order Date :- 8.8.2019 Siddhant Sahu