Allahabad High Court
Harish Chandra Singh And Another vs State Of U.P. And 2 Others on 19 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2776
Author: Karuna Nand Bajpayee
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 64 Case :-MATTERS UNDER ARTICLE 227 No.- 7280 of 2019 Petitioner :- Harish Chandra Singh And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :-Rakesh Kumar Singh, Birendra Singh Counsel for Respondent :- G.A., Akhilesh K. Dwivedi, Suresh Singh Hon'ble Karuna Nand Bajpayee,J.
This petition has been filed on behalf of petitioners seeking the quashing of order dated 16.02.2018 passed by Civil Judge (S.D.)/A.C.J.M. Kaushambi whereby the final report has been rejected and cognizance of the matter has been taken and the accused have been summoned in F.R. Case No.9/2018 (Virendra Kumar Singh vs. Harish Chandra Singh and others), u/s 392, 354(B), 323, 504, 506 I.P.C., P.S.-Mahevaghat, District-Kaushambi arising out of Case Crime No.151/2017 as well as order dated 29.6.2019 passed by the learned Session Judge in Criminal Revision No.22 of 2019 (Harish Chandra Singh vs. State of U.P. and others) whereby the aforesaid order passed by the Magistrate has been affirmed. The entire proceedings of aforesaid case has also been challenged.
It is a case in which the F.I.R. was registered by one Virendra Singh against accused Harish Chandra Singh, Shiv Sewak Singh and Raj Narayan Singh u/s 392, 307, 354B, 323, 504, 506 I.P.C. in Police Station Mahewa Ghat, District Kaushambi with the allegations that on 18.4.2017 at about 1.00 P.M. the first informant was going to Village Chandrai along with his wife Neelam Devi in order to participate in the Tilak ceremony. When he reached near Dhata Mod a Scorpio car numbering UP73 D 9890 came up there and intercepted them. Accused Harish Chandra Singh, Raj Narayan Singh and Shiv Sewak Singh, who were armed with firearms, came out from the Scorpio. Accused Raj Narayan put the firearm on the first informant's chest and then a criminal assault was launched upon the first informant and his wife. The first informant was badly beaten up. Filthy abuses and invectives were hurled and during the course of verbal abuses the accused also uttered and gave expressions which aimed at molesting the first informant's wife. Accused Harish Chandra Singh and Shiv Sewak Singh made an indecent assault upon the first informant's wife and tore off her blouse which she was wearing and started dragging her away. The first informant resisted all this blatant assault on which Raj Narayan Singh fired the shot at him which missed the aim and he got a narrow escape. The first informant raised hue and cry, on which some other persons like Virendra Singh and Umesh, who were also going in the invitation, came up there and somehow the life of the first informant and the modesty of his wife could be spared. The accused also snatched the golden earrings and the golden chain from first informant's wife which she wore at the time of incident. According to the allegations the first informant was also medically examined and treated for the injuries which he had received in the said occurrence. It appears from the allegations that initially the local police did not cooperate and showed reluctance in registering the F.I.R. which impelled the first informant to move an application u/s 156(3) of Cr.P.C. upon which eventually the F.I.R. was registered. After registration of the F.I.R., the investigation commenced but the final report in the matter was submitted in the Court. It transpires that after following due procedure the A.C.J.M., Kaushambi rejected the final report and took cognizance of the matter and proceeded to summon the accused. Aggrieved by the said summoning order a revision was filed on behalf of the accused in the court of Sessions but the same also did not find favour of the Court and got dismissed. Now the accused-applicants have challenged the orders passed by the courts below by way of filing the present petition under Article 227 of the Constitution of India.
Heard learned counsel for the petitioners as well as learned counsel for opposite party nos.2 and 3. Learned A.G.A. for the State has also been heard and the record has been perused.
The first submission made by counsel for the petitioners is that the initial impugned order dated 16.02.2018 passed by the court of A.C.J.M., whereby the final report submitted in favour of accused-applicants has been rejected, does not mention the specific sub-clause under which the cognizance has been taken and the broader Section-190 of Cr.P.C. has alone been mentioned, therefore, cognizance order is defective and cannot be sustained as it remains an unresolved enigma whether the cognizance has been taken u/s 190(a) or 190(b) or 190(c) of Cr.P.C. According to counsel, the subsequent procedure regarding inquiry or trial depends upon the specific sub-section of Section-190 of Cr.P.C. under which the cognizance of the case has been taken by the Magistrate and as the same has not been clarified by the court, therefore it shall lead to utter confusion. Apart from this the aforesaid omission also reveals the non application of judicial mind which vitiates the order. Other submission made by the counsel is that though the F.I.R. was registered u/s 392, 307, 354(B), 323, 504, 506 I.P.C. but the court while rejecting the final report has proceeded to summon the accused only u/s 392, 354(B), 323, 504, 506 I.P.C. The summoning of the accused has not been done u/s 307 I.P.C. According to counsel this is not a legally permissible course and if the Magistrate proceeded to summon the accused he must have summoned them under all the sections mentioned in the F.I.R. and he could not have omitted Section-307 I.P.C. in summoning order. These are the only two submissions made by the counsel on the basis of which the impugned orders have been sought to be challenged. No other point has been raised.
Perusal of the impugned order dated 16.02.2018 shows that the initial court of Magistrate, while adjudicating upon the point of accepting or rejecting the final report, has perused the case diary and while passing the summoning order has repeatedly referred to the material contained in the case diary. It has been observed by the court of Magistrate that the Investigating officer has recorded the statements of the first informant as well as that of the victim and also the statements of other witnesses. It was also observed by the court below that significant witnesses like the first informant in his statement recorded u/s 161 Cr.P.C. and the victim Smt. Neelam Devi in her statement recorded by the Investigating Officer u/s 161 Cr.P.C. as well as in her statement recorded u/s 164 Cr.P.C. have lent corroboration to the prosecution story. It was also observed by the court of Magistrate that the statements of other witnesses namely Virendra Singh and Ram Milan Singh have also corroborated the version of incident that took place with the first informant and his wife. The medical examination and the injuries have also been referred to in the order and it has been specifically observed by the Magistrate that the Investigating Officer, despite the presence of the aforesaid material contained in the case diary, has still submitted the final report wrongly on the basis of certain affidavits. The court below has proceeded to specifically observe that on the basis of the evidence collected by the Investigating Officer a prima facie case has been made out against the accused Harish Chandra Singh, Shiv Sewak Singh and Raj Narayan u/s 392, 354(B), 323, 504, 506 I.P.C. and with those findings the court below proceeded to reject the final report and summoned the accused Harish Chandra Singh and Shiv Sewak Singh u/s 392, 354(B), 323, 504, 506 I.P.C. and also summoned accused Raj Narayan u/s 323, 504, 506 I.P.C. The language of summoning order shows that there is scarcely any substantive reference made to any extraneous material other than the case diary which may be said to have been made the basis to reject the final report or which might have been made the basis to summon the accused. In view of the categorical observations based on the case diary and reference made to it by the court below, it does not leave the court with any doubt that the cognizance has certainly been taken in the case u/s 190(1)(b) of Cr.P.C. and the omission of sub-section is just an inadvertent error of the court. Nothing much therefore turns upon that in favour of the petitioners. Not only this the submission made by the counsel in this regard further crumbles to ground when we see the last sentence of the impugned order passed by the A.C.J.M. which specifically mentions that "the matter shall be proceeded with as a State case". It does not need any further elaboration on the point than to observe that if the cognizance had been taken u/s 190(a) of Cr.P.C. the court would have proceeded in the matter as a complaint case and there was no occasion for it to have observed that the matter shall be proceeded with as a State case. The specific observation in this regard made by the court below as aforesaid conclusively rules out any supposed controversy about the nature of cognizance in the matter and the omission of sub-section in the order passed by the Magistrate does not constitute any such valid ground on the basis of which the impugned order may be quashed. Another argument made by the counsel that the court below was under compulsion to summon the accused for same offences under which the F.I.R. of the case was registered also falls short of impressing this court. When the final report is submitted before the court u/s 173(2) of Cr.P.C., the court has many options open before it. The court can accept the final report as such and consign it to record. It can also take a different view of the matter and may not agree with the inference drawn by the Investigating Officer and may reject the final report if the material contained in the case diary is such which makes out the commission of certain criminal offences and it is found that there are sufficient grounds to proceed against the accused for having committed those offences. While exercising this option the cognizance is taken u/s 190(b) of Cr.P.C. and the material which the Investigating Officer collects during the course of investigation is made the basis to decide whether a particular accused person or persons have committed certain offence or offences or not. The submission of charge sheet or final report is actually the inference drawn by the Investigating officer on the basis of the material which he collects during the course of investigation. He may not be always right in drawing this inference. That is why the court of Magistrate while it considers the final report submitted before it has to see, analyze and weigh the appropriateness of the inference drawn by the Investigating Officer. If he finds that the conclusion or the inference or the decision made by the Investigating officer is wrong and there was sufficient material contained in the case diary to justify the submission of charge sheet it can always proceed to take the cognizance in the matter and reject the final report. For all practical purposes such a cognizance shall be deemed to be u/s 190(b) of Cr.P.C. and all the consequent procedure shall be followed as if the charge sheet in the case was submitted. The law on this point is too well settled to be elaborated upon at any great length and there has not been any divergence of judicial opinion in this regard. The decisions given by the Hon'ble Supreme Court in the cases of H.S. Bains Director Small Saving-cum-Deputy Secretary Finan vs. The State (Union Territory of Chandigarh) 1980 AIR 1883, Abhinandan Jha vs. Dinesh Mishra 1968 AIR 117 and Pakhandu vs. State of U.P. 2002 CrLJ 1210 are some of the representative pronouncements in this regard. Certain other options are also there open for the Magistrate to adopt like treating the protest petition as complaint or directing further investigation into the case, but discussion about them is neither germane nor needed in the context at hand. Now it does not stand to reason at all to say that if the Magistrate is to reject the final report he should summon the accused under all those sections regarding which the F.I.R. was registered. Once the Magistrate is required to exercise his judicial discretion and find out about the sufficiency of ground for proceeding against certain accused he has to see and be convinced about the sufficiency of material regarding certain accused for having committed certain offences. If he finds the material so collected by Investigating Officer deficient against certain accused, he is not at all bound to summon all the accused in a blanket manner for all the offences under which the F.I.R. might have been registered. It all depends upon the nature and sufficiency of material contained in the case diary. It is quite possible that the Magistrate may feel convinced that a particular accused has committed a particular offence or offences while certain other accused of the same case may appear to have committed certain other category of offence or offences. The cases where final report is accepted by the Magistrate, it is done only when he finds himself in complete agreement with the inference drawn by the Investigating Officer that none of the offences for which the F.I.R. was registered have been committed by any of the accused. It does not at all sound logical to say that either the final report is to be accepted as such or it is to be rejected in total and the Magistrate cannot exercise his judicial discretion to make any distinction between different accused persons with regard to the offences that are allegedly said to have been committed by them in the F.I.R. If the material contained in the case diary is such which does not persuade the Magistrate to summon the accused under certain section or sections he cannot be compelled to do so. The Magistrate's discretion in this regard cannot be questioned. Even in complaint cases, the complaint may be filed by complainant under many sections but the Magistrate has all the discretion not to summon the accused under all those sections. The material contained in the case diary may be such in a given case that may make out certain offences against certain category of accused and may not make out the same offences against certain other accused persons of the same case. The legal authority of the Magistrate in this regard or the judicial discretion which he has to exercise in this regard cannot be either doubted or diluted. Therefore if in this particular case the Magistrate has proceeded to summon certain accused persons under certain sections or has decided not to summon them under a particular section or sections it does not create any illegality at all. In fact this petition has been moved on behalf of the accused and the omission of Section 307 I.P.C. in the summoning order can hardly be said to be prejudicial to the accused at all. To the contrary it is the complainant side who may find it prejudicial and against his interest. At any rate the stage to frame the charge is yet to be arrived at and which offence is committed by which particular accused can be much more thoroughly gone into at the stage of the framing of the charge and the arguments in that regard may be much more elaborately placed before the concerned court below by the rival sides. Suffice it to observe that the impugned order does not reflect any element of perversity nor does this Court see any abuse of court's process having been committed. Ordinarily the judicial discretion of the court below is not lightly interfered with by this Court nor does this Court substitute the same by its own casually, unless it finds that the order suffers from some illegality or some such error of fact which may appear to have vitiated the order or which might appear to have caused miscarriage of justice. This Court does not see any breach of constitutional provisions either nor does it perceive any such flaw in the order which may persuade this Court to exercise its power under Article 227 of the Constitution of India for the purpose of quashing the impugned orders or proceedings.
Perusal of the impugned order passed by the lower revisional court also shows that the relevant facts of the case have been duly considered and the judicial mind has been applied. The relevant factual aspects have been kept in perspective and the relevant law has also been kept in view. The counsel has not been able to point out any such illegality, impropriety or incorrectness much less than any abuse of court's process in the impugned orders on the basis of which the same may be castigated.
In view of the aforesaid the petition stands dismissed.
Order Date :- 19.10.2019 M. Kumar