Allahabad High Court
Jaichand Sharma And 2 Others vs State Of U.P. And Another on 8 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:83381 Court No. - 91 Case :- APPLICATION U/S 482 No. - 4012 of 2023 Applicant :- Jaichand Sharma And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vineet Kumar Singh Counsel for Opposite Party :- G.A.,Shri Krishna Mishra Hon'ble Prashant Kumar,J.
1. Heard Shri Vineet Kumar Singh, appearing for the applicants, Shri S.K. Chandraul, learned A.G.A. for the State-opposite party no.1 as well as Sri Ajay Mishra, learned counsel appearing for the opposite party no.2 and perused the records.
2. The instant application under Section 482 of Cr.P.C. has been filed by the applicants praying for quashing of the impugned orders dated 25.09.2017 and 13.02.2019 passed in Misc. Case No. 882 of 2017, arising out of Case Crime No. 0639 of 2017, under Sections 147, 148, 307, 323, 504, 506, 427, 325 and 336 IPC, P.S. Noida Sector-24, District Gautam Buddh Nagar, pending in the Court of First Additional Chief Judicial Magistrate, Gautam Buddh Nagar. Further, in pursuance of the impugned order dated 07.12.2022 passed in Case No. 831 of 2019, arising out of Case Crime No. 0639 of 2017, under Sections 452, 325, 336, 323, 504, 506 and 427 IPC, P.S. Noida Sector-24, District Gautam Buddh Nagar, whereby bailable warrants were issued against the applicant, pending before First Additional Chief Judicial Magistrate, Gautam Buddh Nagar.
3. Counsel for the applicant submits that an FIR was lodged on 09.07.2017, under Sections 147, 148, 307, 323, 504, 506, 427, 325 and 336 IPC, in which, it is alleged that the accused side had assaulted the opposite party no.2 and others while they were in shop. It is further alleged that two people were injured, they broke down the goods kept in the shop. After investigation charge sheet was filed on 26.07.2017, under Sections 325, 336, 323, 504, 506 IPC and other co-accused have been exonerated and cognizance was taken vide order dated 25.09.2017 and the applicants have been summoned under Sections 147, 148, 307, 323, 504, 506, 427, 325, 336 of IPC.
4. By means of the instant application, the applicants are challenging the charge sheet, summoning orders dated 25.09.2017 and 13.02.2019 as well as the bailable warrant dated 07.12.2022 issued against the applicants.
5. Counsel for the applicants submits that opposite party no.2 had filed an objection before the trial court questioning the manner in which the investigation was conducted. Vide order dated 13.02.2019 further cognizance was taken and the applicants were summoned under sections 452, 325, 336, 323, 504, 506, 427 IPC. After passing of the order dated 13.02.2019, when the accused persons did not appear before the trial court, bailable warrants dated 7.12.2022 were issued against the accused-applicants.
6. Counsel for the applicants submits that vide order dated 13.02.2019, the trial court has again summoned the applicants under the charge sheeted sections in addition to the offences under Sections 452 and 427 IPC, under which charge sheet was not submitted and the other co-accused were wrongly exonerated.
7. The counsel for the applicants submits that the first summoning order is illegal, as it has been passed on printed proforma. To buttress his arguments, counsel for the applicants places reliance on the judgment rendered by this Court in the case of Satyapal Vs. State of U.P. and another, 2023 (4) ADJ 345 [LB].
8. He further submits that at the stage of taking cognizance of an offence the court below is only confined to summoning the accused persons with respect to the sections which are covered under the charge sheet and cannot travel beyond the same. To buttress his arguments, counsel for the applicant places reliance on the judgment of the Apex Court in the case of Avadhesh Vs. State of U.P. and others, 2019(6) ADJ 667. He relied on paragraph nos. 13 and 14, which are reproduced below:
"13. Recently, this Court in S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Ors.4, speaking through C.K. Thakker, J., while considering the ambit and scope of the phrase `taking cognizance' under Section 190 of the Code, has highlighted some of the observations of the Calcutta High Court in Superintendent & Remembrancer of Legal Affairs, West Bengal Vs. Abani Kumar Banerjee, MANU/WB/0167/1950: A.I.R. (37) 1950 CALCUTTA 437, which were approved by this Court in R. R. Chari Vs. State of U.P. MANU/SC/0025/1951 : A.I.R. (38) 1951 SC 207. The observations are:
"7. ... What is `taking cognizance' has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) CrPC, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."
14. From the afore-noted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by `taking cognizance'. Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action."
9. He further submits that in a particular case crime number, once the cognizance was taken, the court cannot take further cognizance in the matter.
10. He further submits that in the additional sections applicants were also summoned i.e. under Sections 452, 427 IPC, which were not covered under the charge sheet.
11. Counsel for the applicants submits that a deliberate effort has been made to assign criminality towards civil dispute existing between the parties with regard to shop in dispute in respect of which two suits came to be filed. One was filed from the side of opposite party no.2 in the year 1985 under which the relief with regard to injunction was sought for and the said suit came to be dismissed for want of prosecution against which no restoration application has been filed till date, therefore, the order attained finality.
12. It is further submitted that the applicants have filed SCC Suit for seeking eviction and claiming arrears of rent with regard to the same shop in dispute. Now in that suit the opposite party has entered his appearance and has filed written statement and the matter is subjudice before the competent civil court.
13. Lastly, counsel for the applicants submits that the second order of cognizance as also summoning of the applicants vide order dated 13.02.2019 is hit by the mandate of law engrafted under Section 362 Cr.P.C. which provides that a criminal court is not competent to alter or review its own order, therefore, the second order of cognizance amounts to review of the first order of cognizance, which is impermissible in law.
14. Per contra, Sri Ajay Mishra, learned counsel appears for the opposite party no. 2 and submits that the FIR was registered on the very next day of the incident and the charge sheet was filed in a very hasty manner. The relevant provisions have been left out and hence a protest petition was filed. On the application of opposite party no.2, the trial court summoned the applicants for the additional sections. He further submits that it may be called as irregularity but it is not such an irregularity which may vitiate the trial and it is very well covered with the provisions of Section 460(e) of the Cr.P.C. He further submits that the applicants have also filed an anticipatory bail in which interim protection was granted to the applicants. He further submits that prima facie case is made out against the applicants. There are injury report of the injured persons, which also corroborates the prosecution version.
15. S.K. Chandraul, learned AGA appears on behalf of the State-opposite party no.1 and submits that after perusal of the injury report, it cannot be said that the incident does not occur. The injury report corroborates the averments made in the FIR. He further submits that the incident took place in the premises of the victim and that was recorded in the CCTV camera, also.
16. In rebuttal, learned counsel for the applicants submits that the trial court is not competent to summon the accused under additional sections as per the provisions of Cr.P.C. To buttress his argument, he relied upon the judgment of this Court rendered in the case of Smt. Shalini Kashyap and another Vs. State of U.P. passed in Application U/s 482 No. 23830 of 2021. He relied on paragraph nos. 13 and 14 of the judgment, which is reproduced as under :
"13. The first argument of learned counsel for applicants that addition or substraction of charge for any offence any section is not permissible at the stage of cognizance and it is permissible by the Trial Court only at the time of framing of charge under Sections 216, 218 or Section 228 Cr.P.C. as the case may be.
14. The above submissions have a support of the judgment passed by Supreme Court in State of Gujarat (supra), wherein the Supreme Court has specifically held that Magistrate in a case which is based on a police report cannot add or substract section at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge, therefore, I find merit in the first argument of counsel for the applicants, that learned Magistrate has committed error by adding sections at the time of taking cognizance as well as by the Revisional Court."
17. Learned counsel for applicants submits that in the present case, learned Magistrate took cognizance on offence other than the offence for which charge-sheet was not filed and in this regard, he has placed reliance upon the judgment of Supreme Court in State of Gujarat Vs. Girish Radhakrishnan Varde, (2014) 3 SCC 659. Relevant paragraph nos.14,15,16 and 17 thereof are extracted hereinafter:
"14. But if a case is registered by the police based on the FIR registered at the Police Station under Section 154 Cr.P.C. and not by way of a complaint under Section 190 (a) of the Cr.P.C. before the magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the chargesheet unless of course a complaint before the magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the chargesheet, the matter goes to the magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the magistrate cannot exclude or include any section into the chargesheet after investigation has been completed and chargesheet has been submitted by the police.
15. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of I.P.C. on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offence into the chargesheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the magistrate before whom the matter comes up for taking cognizance after submission of the chargesheet and as already stated, the magistrate in a case which is based on a police report cannot add or substract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under section 216, 218 or under section 228 of the Cr.P.C. as the case may be which means that after submission of the chargesheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the chargesheet.
16. In the alternative, if a case is based on a complaint lodged before the magistrate under Section 190 or 202 Cr.P.C., the magistrate has been conferred with full authority and jurisdiction to conduct an enquiry into the complaint and thereafter arrive at a conclusion whether cognizance is fit to be taken on the basis of the sections mentioned in the complaint or further sections were to be added or substracted. The Cr.P.C. has clearly engrafted the two channels delineating the powers of the magistrate to conduct an enquiry in a complaint case and police investigation based on the basis of a case registered at a police station where the investigating authorities of the police conducts investigation under Chapter XII and there is absolutely no ambiguity in regard to these procedures.
17. In spite of this unambiguous course of action to be adopted in a case based on police report under Chapter XII and a magisterial complaint under Chapter XIV and XV, when it comes to application of the provisions of the Cr.P.C. in a given case, the affected parties appear to be bogged down often into a confused state of affairs as it has happened in the instant matter since the magisterial powers which is to deal with a case based on a complaint before the magistrate and the police powers based on a police report/FIR has been allowed to overlap and the two separate course of actions are sought to be clubbed which is not the correct procedure as it is not in consonance with the provisions of the Cr.P.C. The affected parties have to apprise themselves that if a case is registered under Section 154 Cr.P.C. by the police based on the FIR and the charge-sheet is submitted after investigation, obviously the correct stage as to which sections would apply on the basis of the FIR and the material collected during investigation culminating into the charge-sheet, would be determined only at the time framing of charge before the appropriate trial court. In the alternative, if the case arises out of a complaint lodged before the Magistrate, then the procedure laid down under Sections 190 and 200 of the Cr. P.C. clearly shall have to be followed."
18. Considering the facts and circumstances of the case and following the ratio laid down by this Court in the judgments rendered in the case of Satyapal (Supra) and Avadhesh (Supra), the present application U/s 482 is partly allowed and the impugned orders dated 25.09.2017 and 13.02.2019 in Misc. Case No. 882 of 2017, arising out of Case Crime No. 0639 of 2017, under Sections 147, 148, 307, 323, 504, 506, 427, 325 and 336 IPC, P.S. Noida Sector-24, District Gautam Buddh Nagar, pending in the Court of First Additional Chief Judicial Magistrate, Gautam Buddh Nagar, is hereby set aside and the First Additional Chief Judicial Magistrate, Gautam Buddh Nagar, is directed to decide afresh after taking cognizance and summoning the applicant and pass appropriate orders in accordance with law as well as the direction contained in the judgments cited above within a period of two months from the date of production of a copy of this order.
Order Date :- 8.5.2024 Prajapati