Allahabad High Court
Kalu @ Naresh And Another vs State Of U.P. And Another on 6 October, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 87 Case :- APPLICATION U/S 482 No. - 13330 of 2020 Applicant :- Kalu @ Naresh And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dheeraj Kumar Singh Counsel for Opposite Party :- G.A Hon'ble Raj Beer Singh,J.
1. The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 01.04.2019 passed by learned Additional Chief Judicial Magistrate-II, Mathura in Case No. 271 of 2017 (Computer Case No. 1924 of 2017 (Devendra Vs. Parashram and others), case Crime No. 0281 of 2017, under Sections 147, 148, 149, 307, 504, 506 I.P.C. Police Station Farah, District Mathura, whereby protest petition filed by the opposite party no.2 has been allowed and applicants have been summoned to face trial in the aforesaid case and to quash the order dated 14.08.2019 passed in the aforesaid case by which non-bailable warrants have been issued applicants.
2. It has been argued by learned counsel for the applicants that applicants are innocent and they have been falsely implicated in the instant case and that the first information report of impugned case has been lodged on false and baseless allegations. It was submitted that applicants were named in the first information report but during investigation no evidence was found against them and thus, final report was submitted against them but the opposite party no.2/ first informant filed protest petition, on which the Court below has passed impugned summoning order dated 01.04.2019 to face trial for offences under sections 147, 148, 149, 307, 504, 506 I.P.C. It was further submitted that vide order dated 14.08.2019 non-bailable-warrants have been issued against the applicants in an illegal and arbitrary manner and that the procedure prescribed by law was not followed. It was also argued that one first information report was lodged from the side of applicants against the opposite party no.2 and others, in which proceedings were stayed by co-ordinate Bench of this Court vide order dated 22.01.2019 passed in Criminal Misc. Application No. 2114 of 2019. Learned counsel further argued that instant prosecution has been launched against the applicants as counter blast of said case and that opposite party no.2 has not sustained any injury. It was also argued that opposite party no.2 is a person of criminal mentality and he is having long criminal history. It was submitted that applicants have been falsely implicated in the case and that no prima facie case is made out against the applicants. It was submitted that the Court below without considering the relevant material on record and facts of the case passed the summoning order, which is illegal, arbitrary and thus, liable to be set aside by this Court.
3. Learned AGA has submitted that there is no material illegality or any patent error in the impugned order and thus this application is liable to be set aside.
4. I have heard learned learned counsels for parties and perused the record.
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. 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. Way back in 1977, Hon'ble 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.
7. In M/s India Carat Pvt. Ltd. Vs. State of Karnataka 1989 (26) ACC 280 (SC), it was observed by the Hon'ble Apex Court 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 the 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.
8. 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."
9. 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."
10. In Pakhando and others Vs. State of U.P. and another 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.
11. In view of above discussion, I do not find any error in the process adopted by Court below so as to warrant interference in exercise of jurisdiction under Section 482 Cr.P.C. The perusal of record makes it clear that there are allegations against the applicants that they along with co-accused persons have fired at injured and resultantly the injured has sustained fire-arm injuries. In their statements under section 161 Cr.P.C, the injured as well as other witness have supported this version. Thus, there was sufficient material in case diary so as to justify the summoning of applicants. It is well settled that High Court has no jurisdiction to appreciate the evidence in proceedings under Section 482 of the Code Of Criminal Procedure, because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the trial court during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.
12. No material irregularity in the procedure followed by Court below has been pointed out. It is not a case of grave injustice justifying interference in this application at this stage.
13. In view thereof, this application lacks merit and is accordingly dismissed.
Order Date :- 6.10.2020 S.Ali