Allahabad High Court
Balkeshwar vs State Of U.P. And 5 Others on 1 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 81 Case :- CRIMINAL APPEAL No. - 10012 of 2022 Appellant :- Balkeshwar Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Hanuman Deen Verma Counsel for Respondent :- G.A.,Kamlesh Kumar Tiwari Hon'ble Mohd. Faiz Alam Khan,J.
Rejoinder affidavit filed on behalf of the appellant is taken on record.
Heard Shri Hanuman Deen Verma, learned counsel for the appellant, Shri Kamlesh Kumar Tiwari, learned counsel appearing for the opposite party nos.2 to 6 as well as learned A.G.A. for the State and perused the record.
The instant Criminal Appeal under Section 14-A(1) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been moved by the appellant Balkeshwar with the prayer to allow the appeal and quash the Final Report dated 04.06.2015 as well as accept the final report order dated 07.09.2022 (Balkeshwar Vs. Susheel Chandra and others) passed by Exclusive Special Judge, (SC/ST Act) Basti, arising out of Case Crime No. 704 of 2015, under Section 147, 307, 504, 506, 427 I.P.C. and 3(1)(10) the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Police Station Walterganj, District Basti.
Learned counsel for the appellant/informant while drawing the attention of this Court towards the Final Report/Closure Report submitted by the Investigating Officer dated 04.06.2015 and the order of the Special Court dated 17.08.2017 whereby the order for further investigation has been passed on the protest petition moved by the appellant/informant as well as the impugned order dated 07.09.2022, whereby the Final Report submitted by the Investigating Officer has been accepted by the Special Court, vehemently submits that the trial Court has acted in utter violation of the law laid down by the Hon'ble Supreme Court in 'Bhagwant Singh v. Commissioner of Police' MANU/SC/0063/1985, while it was obligatory on the part of the Special Court to have given a notice to the informant before accepting the Final Report/Closure Report. Thus, patent illegality has been committed by the Special Court in accepting the Closure Report/Final Report behind the back of the informant.
Learned counsel for the opposite party no.2 submits that the pendency of the proceedings before the Special Court were in knowledge of the appellant and the statement of informant was recorded during the course of further investigation, therefore, it was the duty of the informant remain present before the Special Court and when he failed to remain present before the Special Court there was no option for the Court except to accept the Final Report and thus no illegality has been committed by the Special Court.
It is further submitted that the notice before accepting the Final Report/Closure Report was sent by the Special Court on 18.02.2021 to the informant/appellant and it is noted in the impugned order that the informant/appellant had appeared and, thus, no illegality could be attached to the impugned order.
Learned A.G.A. would have no objection in the impugned order, as the acceptance of Final Report as well as the issuance and service of notice is a matter of record.
Having heard learned counsel for the parties and perused the record, it is transpired from the record of the trial Court which has been summoned by this Court that in pursuance of the First Information Report lodged by the informant/appellant on 29.05.2015 as Case Crime No. 704 of 2015, Police Station Walterganj, Basti, a Final Report/Closure Report was submitted by the Investigating Officer on 04.06.2015 and a protest petition was filed by the informant/appellant and it was on the protest petition filed by the informant/appellant, the Special Chief Judicial Magistrate, Basti had rejected the Final Report/Closure Report and had directed for further investigation. Thereafter, it appears that further investigation had taken place and the report was also submitted. However, the same is not on the prescribed format. After submission of the report, after further investigation the order-sheet of the trial Court would reveal that the notice was directed to be issued to the informant/appellant. However, there is nothing on record which may suggest that the informant/appellant was served in pursuance of any process issued by the trial Court and thereafter, the impugned order of date 07.09.2022 has been passed whereby the Final Report submitted by the Investigating Officer has been accepted.
Perusal of the record of the trial Court is sufficient to demonstrate that the order dated 07.09.2022 whereby the Final Report/Closure Report has been accepted by the Special Court, has been passed without hearing the informant and without service of notice on informant.
It is to be recalled that issuance of notice to the informant is one thing and service of the same on informant is another and it was duty of the Special Court by virtue of law laid down by the Hon'ble Supreme Court in 'Bhagwant Singh v. Commissioner of Police' MANU/SC/0063/1985, to serve the informant by giving an intimation that a Final Report/Closure Report is pending for acceptance before the Special Court and only after service of the same on the informant, the same could have been accepted.
The relevant paragraph of 'Bhagwant Singh v. Commissioner of Police (Supra)' is reproduced as under:-
" 4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of S. 173 comes up for consideration by the Magistrate, one of two different situations may 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 do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under subsection (3) of S. 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156 and require the police to make a further report."
Where, in either of the these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed.
But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Informant Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part.
Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in Sub-section (2) of Section 154, Sub-section (2) of Section 157 and Sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him.
'There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under subsection (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process.
We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report'."
In India Carat Pvt. Ltd., M/s. v. State of Karnataka,1989 CRI. L. J. 963, It is held by Honble Supreme Court that Upon receipt of a police report under S.173(2) a Magistrate is entitled to take cognizance of an offence under S.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. S.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 S.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 Ss.200 and 202 of the Code for taking cognizance of a case under S.190(1)(a) though it is open to him to act under S.200 or S.202 also.
In Pakhandu v. State of U.P. reported in 2002 CRI. L. J. 1210, the case relied on by the applicant a Divisional bench of this court opined as under:-
"Where cognizance has been taken under S. 190(1)(b), Cr.P.C. only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to sub-sec. (2) of S. 202, Cr.P.C. shall have no application. Where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require :- (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; or (II) He may take cognizance under S. 190(1)(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 S. 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Ss. 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. Where the Magistrate decides to take cognizance of the case under S. 190(1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Ss. 200 and 202 of the Code, and consequently the proviso to S. 202(2), Cr.P.C. will have no application. For forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at the stage to make use of any material other than investigation records, unless he decides to take cognizance under S. 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under S. 200. From the above it is absolutely clear that proviso to sub-sec. (2) of S. 202 of the Code will apply only to a case where the Magistrate has taken cognizance under S. 190(1)(a) and has opted to hold inquiry under S. 202 after examining the complainant and witnesses present, if any, under S. 200, Cr.P.C."
In Gangadhar Janardan Mhatre v. State of Maharashtra reported in AIR 2004 SUPREME COURT 4753 Honble Supreme Court held as under:-
"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 proceedings, 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 cognizance 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. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. (See M/s. India Sarat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885)."
In Minu Kumari and another Vs. State of Bihar and others MANU/SC/8098/2006 : 2006 (4) SCC 359, Supreme 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 cognizance 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."
In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294, Hon'ble Supreme Court held as under :
"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."
Thus the impugned order dated 07.09.2022 appears to have been passed in utter disregard of the law laid down by Hon'ble Supreme Court in 'Bhagwant Singh v. Commissioner of Police (Supra). Resultantly, the same cannot stand the test of law and is liable to be set aside and is accordingly set aside and the appeal preferred by the informant/appellant is partly allowed and the matter is remanded back to the Special Court to pass an order afresh, after providing an opportunity of being heard to the informant.
Since the informant is present before this Court and is in the knowledge of the submission of the Closure Report/Final Report, the parties shall now appear before the Special Court on 22.05.2023 and in this regard there would not be any obligation on the part of the Special Court to issue another notice to the informant, as he is well represented before this Court by his Counsel Shri Hanuman Deen Verma.
A copy of this order along with record of the trial Court be immediately transmitted to the Special Court through the Sessions Judge Concerned.
Order Date :- 1.5.2023 Imtiyaz/Praveen