Allahabad High Court
Dharamveer Singh And Anr. vs State Of U.P. And Anr. on 31 July, 2014
Author: Bharat Bhushan
Bench: Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved. Court No. - 47 Case :- CRIMINAL REVISION No. - 271 of 2014 Revisionist :- Dharamveer Singh And Anr. Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Gaurav Kumar Shukla,Rajiv Lochan Shukla Counsel for Opposite Party :- Govt. Advocate,Bharat Singh,Manish Tiwari Hon'ble Bharat Bhushan,J.
1. Heard Mr. Rajiv Lochan Shukla, learned counsel for the revisionists, Mr Manish Tiwari, learned counsel for the opposite party no. 2 and learned AGA for the State.
2. The instant revision is directed against the order dated 15.1.2014 passed by the learned Judicial Magistrate II, Badaun in Miscellaneous Case No. 1566 of 2013 (Dhanpal Vs Dharamveer and others), P.S. Civil Lines, District Budaun, whereby the learned Magistrate rejected the final report submitted by police and summoned the revisionists to face trial under Sections 147, 148, 149, 307, 504, 506 IPC.
3. Brief facts giving rise to instant criminal revision are that initially an FIR was lodged on the basis of application under Section 156(3) Cr.P.C. filed by the opposite party no. 2 against the revisionist no. 1 and others under Sections 147,148,149,307,504,506 IPC vide Case Crime No. 231 A of 2013 (State Vs Dharamveer), P.S. Civil Lines, upon which investigation was conducted by the Investigating Officer and after concluding the investigation, the Investigation Officer submitted the final report in the matter on 12.5.2013.
4. Aggrieved by the said final report, opposite party no. 2 filed a protest petition, whereupon learned Magistrate vide order dated 2.9.2013 directed the Investigating Officer of the case to conduct further investigation. Pursuant to the said direction, the Investigating Officer conducted the investigation and again submitted the final report in the matter on 2.10.2013. It is stated that in the meantime, opposite party no. 2 filed a complaint on 11.6.2013 before the concerned Court against the revisionists, whereupon both the cases were directed to be clubbed together and learned Magistrate after recording the statement of complainant and his witnesses u/s 200/202 Cr.P.C. in the complaint case summoned the revisionists to face the trial for the offences under Sections 147,148,149,307,504,506 IPC and directed the matter to run as a state case, vide its order dated 15.1.2014. It is this order, which is subject matter of challenge before this Court.
5. Learned counsel for the revisionist has submitted that the impugned order dated 15.1.2014 discloses that a strange procedure was adopted by learned Magistrate at the time of summoning of revisionists. The order discloses that the cognizance was taken into Section 190 (1)(b) of the Cr.P.C. on the basis of protest petition filed against the final report under Section 173 Cr.P.C.. But this cognizance was taken relying upon the statements of witnesses u/s 202 Cr.P.C. and the material supplied in simultaneous complaint case.
6. On the other hand, Mr. Manish Tiwari, learned counsel for the opposite party no. 2 and learned AGA argued that in view of Section 210(2) Cr.P.C. learned Magistrate was well within its right to adopt the particular procedure. It is apparent that once the final report is submitted the Magistrate has several course open viz "1. He may agreeing with the conclusion arrived at by the police, accept the report and drop the proceedings. But before doing so, he shall give an opportunity of hearing to the complainant; or
2. He may take cognizance under Section 190 (1) (b) and issue process straight way 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
3. He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner;or
4. He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190 (1) (a) 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.
7. The aforesaid position of law has been elucidated in Pakhando and others versus State of U.P. and another reported in 2001 (43) ACC 1096 as well. It is therefore, evident that the learned Magistrate could have taken cognizance under Section 190(1)(b) Cr.P.C. by rejecting the protest petition but instead of passing the simple order u/s 190(1)(b) Cr.P.C. he adopted a very strange procedure. He passed the orders u/s 190(1)(b) Cr.P.C. but relied upon the evidence collected during course of parallel complaint case. Whenever, any Magistrate has decided to take cognizance of the case u/s 190 (1)(b) Cr.P.C. on disagreement with the conclusion drawn at by the Investigating Officer, in such situation, the Magistrate is not bound to follow the procedure laid down in Section 200/202 Cr.P.C. He can adopt the procedure of State case once the cognizance u/s 190(1)(b) of Cr.P.C. is taken. But it pertinent to point out that for forming such independent opinion the Magistrate can act only upon the statements of witnesses and other material collected during investigation. It is not permissible for him at this stage to make use of any other material than the material collected by the Investigating Officer. He can of course decide to take cognizance u/s 190 (1)(a) Cr.P.C. and can ask the complainant to examine himself and his witnesses u/s 200/202 Cr.P.C. He may subsequently also adopt the procedure laid down u/s 202 Cr.P.C. But once he decides to take cognizance u/s 190(1)(b) Cr.P.C. he is precluded to consider any other materials not disclosed by the Investigating Officer.
8. In the instant case, learned Magistrate had decided to take cognizance u/s 190(1)(b) Cr.P.C. but had relied upon the extraneous materials collected during the parallel complaint case.
9. Learned AGA and learned counsel for the opposite party no. 2 have drawn the attention of this Court towards Section 210(2) Cr.P.C. which provides that if a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
10. I am afraid, this argument does not taken into consideration that Section 210 (1) Cr.P.C. requires that when in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
11. It is pertinent to mention here that the Magistrate had ordered the further investigation into the matter, therefore, the matter was pending before the Court, in view of his earlier order for further investigation in the matter. The parallel complaint should have been stayed in view of Section 210(1) Cr.P.C. The argument does not take into consideration the mandate of Section 210 (2) Cr.P.C. as well. It entails that if a report is made by the Investigating Officer u/s 173 Cr.P.C. and on such report cognizance of offence is taken by the Magistrate against any person, who is an accused in the complaint case, "then the Magistrate shall enquire into or try together a complaint case and the case arises out of police report as if both the cases were instituted on police report". [emphasis supplied].
12. It is therefore, evident that the report of the Investigating Officer u/s 173 Cr.P.C. and the prior cognizance by the Magistrate on such report is sine-qua-non for amalgamation of complaint case with the police case and order for further proceedings.
13. In the instant case, the protest petition was filed which was rejected and cognizance was taken u/s 190(1)(b) Cr.P.C. The Magistrate was not authorised to take extraneous material collected in a parallel complaint case for taking cognizance u/s 190(1)(b) Cr.P.C. If he was interested in taking into consideration the material collected during inquiry in a complaint case then, he should have taken cognizance u/s 190(1)(a) Cr.P.C.
14. But learned Magistrate has clubbed the state case and the complaint case together without fulfilling the requirement of Section 210(2) Cr.P.C. and after taking into account the evidence of complainant in complaint case u/s 200/202 Cr.P.C. and other extraneous materials summoned the accused revisionists to face the trial as State Case. This procedure is not in accordance with law. In these circumstances, the impugned order cannot be sustained and is liable to be set aside.
15. The revision is allowed. The impugned order dated 15.1.2014 passed by the Judicial Magistrate II, Badaun in Miscellaneous Case No. 1566 of 2013 (Dhanpal Vs Dharamveer and others), P.S. Civil Lines, District Budaun, is hereby set aside and the matter is remanded back to the Magistrate with a direction to decide the matter afresh in accordance with law as laid down by Division Bench of this Court in the Pakhandoo (supra).
Copy of the order be certified to the concerned court through Sessions Judge, Budaun within a fortnight.
Order Date :- 31.7.2014 RavindraKSingh