Allahabad High Court
Deokinandan And Ors. vs State Of U.P. And Ors. on 7 February, 1995
Equivalent citations: 1996CRILJ61
ORDER I.S. Mathur, J.
1. The petitioner is aggrieved by order dated 3-6-1992, passed by the VII Additional Chief Judicial Magistrate, Buland-Shahr summoning the petitioners under Sections 307/323/435/504/506, I.P.C. and the order dated 12-1-1993 whereby the learned IX Additional Sessions Judge, Bulandshahr has dismissed the revision against the said order.
2. I have heard learned counsel for the petitioners and learned Standing Counsel and in my opinion, there is no force in this writ petition. The relevant facts are in a very short compass. The complainant, Ram Kishore Garg, filed a criminal case which was registered as No. 352A/90, State Versus Deoki Nandan under Sections 307/323/435/504/506, I.P.C. A final report was, however, given by the concerned investigating officer. The complainant then moved a protest petition before the concerned Magistrate and submitted that the police has wrongfully given the final report. The complainant also filed an affidavit along with his protest petition. It may also be indicated at this stage that earlier the Police had submitted final report but the learned Magistrate had directed further investigation to be made on the ground that the statements of the complainant and the nurse were not taken. During further investigation, the statements of the complainant and his witnesses Satish, Naresh and the nurse Smt. Kunti Devi alias Manorama were taken by the investigating officer.
3. On a consideration of these statements, the learned Magistrate held that there was sufficient ground for summoning the petitioners under the provisions mentioned above.
4. The main contention of the learned counsel for the petitioners was that, in addition to the statements recorded under Section 161, Cr.P.C. the learned Magistrate also took into consideration the affidavit filed by the complainant. The argument proceeded that, once the Magistrate took into consideration the affidavits or material other than the material available in the case diary, the Magistrate has to deal with the case as a complaint case and he could summon the accused only after complying with the provisions of Sections 200 and 202, Cr.P.C. It was contended that he could not have taken the cognizance under Section 190(1)(b), Cr.P.C. as he has done in the present case. It is difficult to accept this submission. In Shabir Ali v. State of U.P., 1988 ACR 456 : (1988 All LJ 783) the Magistrate had accepted final report. On protest petition being filed along with some affidavits, he considered those documents and came to the conclusion that there was a prima facie case. It has been held by this Court that the cognizance taken would be on the police report under Section 190(1)(b), Cr.P.C. and the Magistrate will be perfectly justified in straightway summoning the accused without resorting to procedure laid down in Sections 200 and 202, Cr.P.C.
5. In Suresh Chandra Mishra v. State of U.P., 1994(31) ACC 751 also, it was argued on behalf of the revisionist that the Magistrate cannot take into consideration the affidavits filed with the protest petition, for taking cognizance on police report the plea has been rejected by this Court and it has been observed as follows :-
"I have considered the submission of the learned counsel. Section 296, Cr.P.C. is permissive in nature. It provides that evidence of formal character may be given by affidavit. Sub-section (2) of Section 296, Cr.P.C. further protects the interest that if any evidence has been given affidavit, the Court may at any stage, summon the deponent of the affidavit and may examine him on the facts contained in the affidavit. In view of this, even if affidavits have been relied on, the applicants will not suffer any prejudice as the witnesses may be summoned. Further the perusal of the order shows that it is not only the alleged affidavits which have been relied on for taking cognizance but the medical report and other material on record has also been referred and then the learned Magistrate has formed his opinion that in this case cognizance may be taken under Section 190(1) Cr.P.C.
6. In Qasim v. The State, 1984 Cri LJ 1677, it has been held by this Court that if the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case.
7. In Babu v. State of U.P., 1989 ACR 470 : (1989 All LJ 880) this Court has held :-
"At the outset it must be clarified that the procedure for complaint case is never to be misplaced with the right of the Magistrate to reject final report, which may be done with or without a protest petition. Time out of number it has been emphasized that a protest petition can and should not be compared to a complaint unless such statement is made by the complainant/ informant that his petition be treated as a complaint within the meaning of Section 190, Cr.P.C. or for some reason the Magistrate himself treats it as a complaint and follows the procedure cotnained in Chapter XVI of the Cr.P.C. Such protest petition is only an objection to the acceptance of the final report for which there is no provision in the Criminal Procedure Code. The Hon. Supreme Court in Bhagwant Singh's case had made it incumbent upon the Magistrate to issue notices to the informant before accepting a final report. Obviously, the Supreme Court was not equating a protest petition with a complaint."
8. In Satyapal v. State of U.P., 1988 ACC 326 : (1988 Cri LJ NOC (All) 17) it has been held by this Court that a Magistrate is not bound to accept the opinion of the police submitted to him under Section 169 of the Code of Criminal Procedure. He can disagree and differ with it and if he does so then even on the basis of the police papers, if any, submitted along with the police report, he can take cognizance of the case and that cognizance will be deemed to be under Section 190(i)(b) of the Cr.P.C. It has been further held that the Magistrate is free to reject the police report submitted under Section 169 of the Cr.P.C. and act on the protest petition treating it to be complaint but this he can do Only if the protest petition comprises all the ingredients of complaint which has been defined under Section 2(d) of the Code of Criminal Procedure.
9. The correct legal position thus is that the Magistrate is not bound to accept the final report submitted by the police. He can disagree with that report and take cognizance even on the basis of police papers, if any, submitted along with the police report. When a final report is submitted and protest petition again it is filed, the Magistrate will have the following options:-
1. He may accept the final report and may also reject the protest petition.
2. He may accept the final report but treat the protest petition as a complaint and proceed in accordance with Sections 200 and 202, Cr.P.C.
3. He may accept the protest petition and reject the final report and take cognizance under Section 190(1)(b), Cr.P.C. whether the Magistrate takes cognizance on the police report or he rejects the final report and accepts the protests petition, the cognizance taken by him would be under Section 190(1)(b), Cr.P.C. Merely because an affidavit has been filed along with the protest petition, it could not necessarily lead to the conclusion that the Magistrate has taken cognisance under Section 190(1)(c), Cr.P.C. as has been held in the afore-mentioned cases. It may be further observed that, as has been held by Hon'ble Palok Basu, J. in Babu's case (supra) a protest petition cannot and should not be compared to a complaint unless statement is made by the complainant/informant that his petition be treated as a complaint within the meaning of Section 190, Cr.P.C. or for some reasons the Magistrate himself treats it as a complaint and follows the procedure contained in Chapters XV and XVI of the Cr.P.C. Such protest petition is only an objection to the acceptance of the final report for which there is no provision in the Criminal Procedure Code and it is only the decision of the Supreme Court: in Bhagwat Singh's case (supra) that a notice to! informant is necessary before accepting a final report. In this decision of the Supreme Court, the protest petition has not been equated to a complaint nor, in my opinion, it can be so equated.
10. Nothing to the contrary would appear to have been laid down in the cases relied upon by the learned counsel for the petitioners and it would appear that those cases are either distinguishable on facts or cannot be said to be good law any more. In Ahibaran Singh v. State of U.P., 1983 (2) ACC 236 : (1983 All LJ 254) a learned single Judge of this Court would appear to have taken the view that once a protest petition is filed, the Magistrate has to proceed treating the protest petition as a complaint and record the statements as provided under Section 202, Cr.P.C. and that provision of Section 204, Cr.P.C. will also be attracted. He has referred to and relied upon the decision of Hon'ble Supreme Court in Abhinandan Jha's case and has held as above by interpreting the said decision to mean that once the protest petition has been filed, the Magistrate shall proceed as in a complaint case the protest petitions is to be treated as a complaint and the entire procedure of the complaint case has to be observed. It is difficult to subscribe to this interpretation of the decision of Hon'ble Supreme Court made by the learned single Judge. This decision of the Hon'ble Supreme Court was referred to by Hon'ble Supreme Court in its later decision in India Carat Pvt. Limited v. State of Karnataka, and Hon'ble Supreme Court has observed as follows at page 890: of AIR:-
"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 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."
Therefore, the correct legal position, as laid down by the Hon'ble Supreme Court, is that on a consideration of the police report under Section 173(2), a Magistrate can take cognizance of the offence under Section 190(1)(b) of the Code, though it is also open for him to proceed under Sections 200 and 202, Cr.P.C. also. The observation that has been relied upon by the learned single Judge in Ahibaran Singh's case would thus only mean that it is open to the Magistrate to proceed in such a case by treating the protest petition to be complaint but it is not mandatory for him to do so. He can accept the protest petition and take cognizance on the basis of the police report also. Accordingly, Ahibaran Singh's case cannot be held to be a good law in view of the observation and decision of Hon'ble Supreme Court in M/s. India Carat Pvt. Limited's case.
11. For the same reason, it is difficult to subscribe to the view taken by another Hon'ble single Judge of this Court in Dr. Balram Singh v. Harish Chandra Srivastava, 1994 (31) ACC 317. In this case also, the learned single Judge would appear to have interpreted the decision of Hon'ble Supreme Court in Abhinandan Jha's case in the same manner. It appears that the decision of the Hon'ble Supreme Court in M/s. India Carat Private Ltd.'s case was not brought to the notice of the learned Judge. It is also not possible to accept the view that merely because an affidavit was filed along with the protest petition, it should be held that the Magistrate has taken or should take cognizance under Section 190(1)(c) of Cr.P.C.
12. In Gajendra Kumar Agarwal v. State of U.P., 1994 (31) ACC 341, a learned single Judge of this Court has taken the view that before accepting the final report, the accused must also be given an opportunity to show cause. This decision has been given on March 17, 1994. However, in a later decision, rendered on July 25, 1994, Suresh Chandra Mishra v. State of U.P., 1994 (31) ACC 751, another learned single Judge of this Court has taken a contrary view and, after referring to the decision in the case of Gajendra Kumar Agarwal, he has disagreed with that view and has held that it is not necessary to give any such opportunity. With respect, I subscribe to the view taken in the case of Suresh Chandra Mishra and, in my opinion it is not necessary to give any opportunity to the accused before accepting a protest petition. The accused will have sufficient opportunity at a later stage. In this connection, it may also be observed that the Magistrate could have taken cognizance of the case in spite of the final report submitted by the police. Merely because a protest petition is also filed, it should not be considered necessary for the Magistrate to hear the accused also before taking cognizance of the case.
13. The last case, relied upon by the learned counsel for the petitioners, Ramesch Chandra Dixit v. State of U.P., 1993 (30) ACC 500, is clearly distinguishable on facts. In that case, on protest petition being filed, the Magistrate recorded the statement of the informant and also took into account the affidavits of the witnesses. Quite obviously, the Magistrate factually proceeded as in a complaint case. It is on these facts that the learned single Judge has held that it was necessary for the Magistrate to follow the procedure prescribed in Chapter XV. However, as already indicated with reference to the earlier decisions of this Court, merely filing of the protest petition or even some affidavits is not necessarily conclusive of the fact that the Magistrate has proceeded to take cognizance under Section 190(1)(c), Cr.P.C. or he should have taken cognizance under these provisions. If there is no indication by informant/complainant that his protest petition may be treated as a complaint and the learned Magistrate does not also consciously proceed as in a complaint case, merely filing of a protest petition or certain affidavits cannot lead to the conclusion that the Magistrate has or should have proceeded as in a complaint case.
14. In the present case, the Magistrate has specifically taken cognizance under Section 190(1)(c), Cr.P.C. There was neither any submission by the complainant that his protest petition be treated as a complaint nor any indication was made to that effect. The Magistrate also, as stated above, did not intend to proceed as in a complaint case. It cannot be said that the learned Magistrate has committed any error in exercise of jurisdiction.
15. Even if it is assumed for argument's sake that the learned Magistrate could not have considered the affidavit while taking cognizance under Section 190(1)(b), Cr.P.C. the order of the Magistrate will clearly indicate that he has, in fact, come to the conclusion that the statements recorded by the investigating officer during further investigation, namely, the statements of the complainant and his witness Satish, Naresh and the nurse Smt. Kunti Devi alias Manorama under Section 161, Cr.P.C. fully support the prosecution version. These observations of the learned Magistrate show that, in fact, he has found his opinion on the basis of the statements under Section 161, Cr.P.C. No doubt, a little further in his order, he has stated that on a consideration of the affidavit of the complainant and the statements in the case diary, prima facie, case is made out but it is quite evident that this opinion is not really based on the affidavit of the complainant but on his statement and statement of these witnesses recorded under Section 161, Cr.P.C. The statement of the complainant has also been recorded under Section 161, Cr.P.C. If he merely filed an affidavit to the same effect, it could not be said that the learned Magistrate was really influenced by the affidavit and not by the statement under Section 161, Cr.P.C. If he could take cognizance on the basis of the statement under Section 161, Cr.P.C, as he could, indeed, do, according to law, merely filing of an affidavit of the complainant in addition to that statement under Section 161, Cr.P.C could not make any difference in the situation. For this reason also, the submission of the learned counsel for the petitioners cannot be accepted.
16. In view of the above, the petition is liable to be and is hereby dismissed.