Allahabad High Court
Krishna Kumar And Anr. vs The State Of U.P And Anr. on 16 February, 2018
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Court No. - 11 Case :- U/S 482/378/407 No. - 5330 of 2011 Applicant :- Krishna Kumar And Anr. Opposite Party :- The State Of U.P And Anr. Counsel for Applicant :- Manoj Kumar Misra Counsel for Opposite Party :- Govt. Advocate,K.N.Mishra Hon'ble Chandra Dhari Singh,J.
1. Heard Mr. Manoj Kumar Mishra learned counsel for the applicants, learned A.G.A. for the State as well as Mr. K.N. Mishra learned counsel for the opposite party no.2 and perused the records.
2. The present application has been filed for quashing the proceeding of Complaint Case No.7/8/07 (Jay Ram vs. Krishna Kumar and others), under Sections 323, 504, 506 I.P.C., P.S. Kotwali Dehat, District Gonda pending in the court of learned VIth Additional Civil Judge, Gonda and cognizance order dated 10.04.2009 passed learned Additional Civil Judge-IX (J.D.) Gonda.
3. It transpires that in respect of the incident in question an F.I.R. was lodged on 01.04.2007 making out an offence under Sections 323, 504, 506 of Indian Penal Code (IPC). The police on investigation into the offence, filed the final form before the Court of IX Additional Civil Judge (JD)/Judicial Magistrate, Gonda. Prior to accept the final form, he issued notice to the opposite party no.2. On 05.06.2008, a protest petition is alleged to have been filed and on that petition the Magistrate directed that same be treated as a complaint. The Magistrate then held an inquiry under Section 202 of the Code of Criminal Procedure (Cr.P.C.) and ultimately, on the basis of the materials produced in the inquiry, taking the same with the allegations made in the protest petition which has already been treated as a complaint, took cognizance under Sections 323, 504 and 506 I.P.C.
4. The counsel of the applicant contended that a complaint case can be registered only when a complaint is available before the Court. A protest petition can be registered as complaint case only when such petition contains contents of a complaint as mentioned in Section 2(d) Cr.P.C.
5. On the other hand learned A.G.A. opposed the submissions made by the learned counsel for the applicants and stated that it is settled principle of law that when police after investigation filed a final form under Section 173 Cr.P.C., the Magistrate may disagree with the conclusion arrived at by the police and take cognizance under Section 190 of Cr.P.C. The Magistrate may not take cognizance and direct for further investigation in the matter under Section 156 (3) of Cr.P.C. where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a protest application is not taking away and in fact on said protest application be filed by the Magistrate followed a procedure under Section 201 of the Code and takes cognizance after the satisfaction of the inquiry under Section 202 Cr.P.C. It is further contended that after inquiry under Section 202 Cr.P.C., the Magistrate on satisfaction of the material produced in the inquiry of the present case, treated the protest application as complaint and then took cognizance under Sections 323, 504 and 506 I.P.C. against the applicants.
6. I have considered the rival submissions made by learned counsel for the parties and perused the material available on record.
7. The Magistrate on receipt of the final form by the police cannot direct the Investigating Agency to file a charge sheet inasmuch as the filing of the charge sheet is within the domain of the Investigating Agency. But the Magistrate has untrammeled power to direct further investigation into the matter or even to take cognizance on the basis of the materials produced even though the police might have filed the final form. In the instant case on the final form the protest petition has been filed and the Magistrate held an inquiry under Section 202 Cr.P.C. and on the basis of the material produced in the inquiry, taking the same with the allegations made in the protest petition was treated as a complaint.
8. The learned Magistrate in the present case considered the protest application, the final report submitted by the police, the inquiry under Section 202 Cr.P.C. and the material produced in the inquiry under Sections 202 Cr.P.C. and ultimately passed an order not to accept the final report and took the cognizance against the applicants.
9. Section 482 of the Cr.P.C. starts with the words "nothing in this Code". Thus, the inherent jurisdiction of the High Court under Section 482 of the Cr.P.C. can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. The inherent power is to be used only in the cases where there is an abuse of the process of the Court or where inference is absolutely necessary for securing the ends of justice. The most common cases where inherent jurisdiction is generally exercised is fair criminal proceedings are required to be quashed because they are initiated illegally, vexatious or without jurisdiction.
10. The category of doctrine of 'abuse' is more exceptional that those describe above. It arises from the duty of the High Court (in the case of Bennett vs. Horseferry Magistrate Court) to over see executive action 80 as to prevent the sale taking advantage of acts that threaten either basic human rights or the rule of law.
In Bennett vs. Horeferry Road Magistrate's Court, there was a challenge to proceedings where the defendants had been brought to U.K. from South Africa. It was held that it was an abuse of process for a person to be forcibly brought the jurisdiction of the Court is disregard of extradition proceeding.
11. In this case, however, does not show that the Magistrate was bound to treat the protest application as a complaint. So far as the Magistrate is concerned, he was himself not bound to accept the final report and even without the protest application, he could refuse to accept the final report. Therefore, it cannot be said that the learned Magistrate was bound to treat the protest application as a complaint, as it is likely that in case where the protest applications are made, the police may have sufficient reasons for not proceeding with the case yet the complainant may be able to show that the police has submitted the final report on account of some ulterior motive or objectionable methods adopted by it. It is, therefore, not necessary that the protest application may contain all the facts which constitute a complaint under the law.
12. In view of the above discussions, I am therefore, not prepared to exercise my power under Section 482 Cr.P.C.
13. Accordingly, the present application under Sections 482 Cr.P.C. is dismissed.
Order Date :- 16.02.2018 Jitendra (Chandra Dhari Singh,J.)