Allahabad High Court
Surya Narayan Singh vs State Of U.P.& 4 Others. on 23 August, 2018
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 29 Case :- CRIMINAL REVISION No. - 368 of 2005 Revisionist :- Surya Narayan Singh Opposite Party :- State Of U.P.& 4 Others. Counsel for Revisionist :- H.S.Tiwari Counsel for Opposite Party :- Govt.Advocate,S.P. Shukla,Sushil Kumar Singh Hon'ble Rajesh Singh Chauhan,J.
1. List of supplementary cases has been revised but no one appears on behalf of the revisionist to press this revision. In earlier occasion, learned counsel for the revisionist was not present despite the list being revised.
2. Heard Sri Sushil Kumarl Singh, learned counsel for the opposite party Nos.2, 4 & 5 and Sri Aniruddha Singh, learned Additional Government Advocate for the State.
3. By means of this criminal revision, the revisionist has assailed the order dated 18.05.2008, passed by the learned Additional Chief Judicial Magistrate, Room No.19, Sultanpur in Criminal Suit No.179 of 2004 relating to Case Crime No.508 of 2001 registered under Sections 498-A/ 304-B/ 120-B I.P.C. & Section 3/4 of Dowry Prohibition Act, Police Station-Amethi, District-Sultanpur (now District-Amethi), whereby the protest application of the revisionist has been rejected.
4. The brief facts giving rise to the instant revision are as under:-
5. The marriage of the daughter of the complainant namely Smt. Poonam, was solemnized on 11.05.1999 with Sri Sachendra Pratap Singh resident of Town-Amethi, Police Station-Amethi, District-Sultanpur (now District-Amethi). Sri Har Nam Singh (since deceased) was father-in-law, Smt. Shiv Kumari is the mother-in-law whereas Ms. Dolly is the sister-in-law (Nanad) of the deceased Smt. Poonam.
6. As per the complainant, the relation of his daughter and his son-in-law (Sachendra Pratap Singh) was not very cordial and his daughter was being tortured by the family members of his son-in-law quite often for demand of dowry. It has also been stated that the deceased, Smt. Poonam, had filed a suit for divorce on 25.10.2000.
7. This Court has taken a note of the fact that even after filing the divorce suit on 25.10.2000, Smt. Poonam (the deceased) was living with her husband in her in-laws place and on account of their wedlock they were blessed with son. At the last time of the pregnancy of Smt. Poonam (the deceased) she was admitted in the King George Medical University (KGMU), Lucknow in private ward and she was being looked after by her mother-in-law.
8. The aforesaid facts creates the strange situation inasmuch as if any divorce suit was filed by Smt. Poonam (the deceased) eventhen she was living with her husband along with her in-laws and she was being looked after by her in-laws at the time of delivery,. The simple inference what could be drawn is that the relation of Smt. Poonam (the deceased) and her in-laws including the husband was not so strange as has been indicated in the complaint.
9. By filing this revision, the revisionist has not filed the First Information Report. However, the First Information Report was registered on 26.11.2001 at Case Crime No.508 of 2001, under Section 498-A, 304-B & 120-B I.P.C. and Section 3/4 of Dowry Prohibition Act, at Police Station-Amethi, District-Sultanpur (now District-Amethi) after two days from the death of Smt. Poonam, which occurred on 24.12.2001.
10. After registering the First Information Report, the investigation carried out by the Deputy Superintendent of Police, Sultanpur, who has submitted a final report. However, on the complaint of the complainant the matter was transferred to CB, CID for investigation and the said Agency has also filed the final report before the court concerned i.e. the third Additional Chief Judicial Magistrate, Sultanpur.
11. There were three affidavits filed by the complainant in the matter. The first affidavit was filed on 01.01.2002 thereby the father of the deceased (Smt. Poonam) submitted an affidavit before the Deputy Superintendent of Police, Amethi levelling allegations against his son-in-law and his family members; the second affidavit was filed on 30.10.2003 before the Superintendent of Police, CB, CID, wherein the father of the deceased has submitted that his earlier affidavit was not properly worded and the allegations so levelled against the family members of the in-laws of his daughter was made on account of mental agony and pressure of some well wishers and his third and last affidavit was filed on 30.11.2004 before the court concerned along with the protest application.
12. It is noted here that vide Parcha No.15 of the Case Diary, the statements of father, brother and mother of the deceased were recorded and also the copy of the second affidavit dated 30.10.2003 was shown to them. The brother and father of the deceased have categorically admitted the contents of the affidavit dated 30.10.2003 and had not submitted that this affidavit is a forged one. Rather, they have submitted that the first affidavit dated 01.01.2002 was not proper and the said affidavit was given when the entire family was under severe mental agony and pressure.
13. It is also noted here that if the second affidavit dated 30.10.2003 was a forged one or was got prepared under influence of compulsion, the father or brother of the deceased (Smt. Poonam) must have raised objection before the Competent Authority i.e. CB, CID when the said affidavit was shown to them at the time when the first opportunity was being given to them. Therefore, if the second affidavit dated 30.10.2003 was not retracted at the first opportunity being provided to the family members of the deceased, the third affidavit dated 30.11.2004, which was filed after more than one year from the date when the second affidavit was filed along with protest application, would be considered as an after thought and may not be said to be trustworthy in the four corners of the provisions of law applicable in this point.
14. It is also noted that when Smt. Poonam, the deceased, was admitted in the KGMU after burn injury, she had recorded her statement before the Doctor and no allegation of any kind whatsoever had been levelled against her husband and her in-laws. Since she died after sometime thereafter in the hospital itself so it cannot be presumed that the said statement of Smt. Poonam was not trustworthy. Rather, it was trustworthy statement and therefore no negative inference can be drawn against the accused persons.
15. The bare perusal of the revision in question reveals that the revisionist has raised a sole ground that his second affidavit dated 30.10.2003 was forged one and the contents of the protest application was not considered by the learned court below. It has nowhere been indicated in the instant revision that the learned court below has not considered the relevant material on record e.g. the contents of the First Information Report, the contents of final report, contents of the case diary, statements recorded under Section 161 Cr.P.C. of various persons and all other relevant documents. Whereas bare perusal of the order dated 18.05.2005, whereby the final report so submitted by the CB, CID has been accepted by the court concerned, reveals that while passing the aforesaid order dated 18.05.2005 the learned court concerned has perused the entire record i.e. the First Information Report, Case Diary, statements of various persons recorded under Section 161 Cr.P.C., all other relevant documents e.g. the correspondence letter of the deceased which were made between the deceased and her parents and the copies of all the three affidavits. If the learned court below has perused all the three affidavits including the affidavit dated 30.11.2004 which was filed along with the protest application, then it may not be said that the court concerned has not perused/ considered the contents of the protest application.
16. Learned counsel for the opposite party Nos.2, 4 & 5, Sri Sushil Kumar Singh, has placed reliance upon the Division Bench Judgment of this Court reported in 2001 (43) ACC 1096; Pakhando and others vs. State of U.P. & another referring paras-15 & 20 of the aforesaid judgment, which are being reproduced here-in-below.
"15. From the aforesaid decisions, it is thus clear that 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 Section 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 Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.
20. In view of what we have stated above, the question referred to by the learned Single Judge is answered as follows:-
'Where cognizance has been taken under Section 190 (1) (b) Cr.P.C. only on the basis of material collecting during investigation and without taking into count any extraneous material, Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to sub-section (2) of Section 202 Cr.P.C. shall have no application. The contrary view expressed in Mohabbat Ali's case is not a correction proposition of law'."
17. Placing reliance upon the aforesaid judgment of the Division Bench of this Court, Sri Sushil Kumar Singh, learned counsel for the opposite party Nos.2, 4 & 5 has submitted that the court concerned could have agreed with the conclusion arrived at by the police and accordingly he has rightly accepted the final report dropping the proceedings and the aforesaid order has been passed by affording an opportunity of hearing to the complainant as his last affidavit dated 30.11.2004 was considered. Therefore, he has submitted that in the light of the aforesaid judgment of the Division Bench of this Court, there is no error of law, infirmity or illegality in the order dated 18.05.2005 passed by the learned trial court.
18. Sri Aniruddha Singh, learned Additional Government Advocate has cited the judgment of this Court at Allahabad dated 05.09.2008 rendered in Criminal Revision No.25 of 2005; Nawab Saiyyed Zafar Hussain vs. State of U.P. referring paras-10, 11 & 12 of the aforesaid judgment thereby submitting that the Magistrate concerned could have done both the ways as he could have accepted the final report and dropped the proceedings after affording opportunity of hearing to the complainant or he could have taken cognizance under Section 190 (1) (b) Cr.P.C. and thereafter the statement under Sections 200 and 201 Cr.P.C. could have been recorded and thereafter the matter could have been closed. Paras-10, 11 & 12 of the aforesaid judgment read as under:-
"10. From the aforecited observations of the Division Bench also, it is clear that the Magistrate is not bound to treat the protest petition as complaint in each and every case and if the Magistrate agreeing with the conclusions arrived at by the police decides to accept the final report and to drop the proceedings, then opportunity of hearing has to be given to the complainant before passing order on the final report. According to the Pakhandu case (supra), the fourth course open to the Magistrate is 'Jit: without issuing process or dropping the proceedings, he may decide to rake cognizance under Section 190(1)(a) Cr.P.C. upon the original complaint or protest petition treating the same as complaint and proceed to act under Section 200 and 202 Cr.P.C. and thereafter to decide whether the complaint may be dismissed or process should be issued, but in the cases, where the first information report does not disclose any criminal offence and final report is submitted by the investigating officer, then there is W justification in such cases to compel the Magistrate to treat the protest petition against final report as complaint and to follow the procedure laid down in Chapter XV Cr.P.C.
11. In view of the observations made herein-above, let us now see whether in instant case, the learned Magistrate was justified in dismissing the protest petition of the revisionist at the time of disposal of the final report. Annexure (IX) is the copy of the application moved by the revisionist under Section 156(3) Cr.P.C. in the Court of 6th Metropolitan Magistrate, Kanpur Nagar. On the basis of the averments made in the accompanying affidavit, it can not be said that no offence is disclosed in this case. On the basis of the allegations made in the affidavit of the revisionist Nawab Saiyyed Zafar Hussain filed in support of the application under Section 156(3) Cr.P.C. prima facie cognizable offences are disclosed. Therefore, if the material in the case diary submitted with the final report by the investigating officer in case crime No. C-7/2003 was not sufficient to take cognizance against the accused and if the Magistrate had decided to accept the final report, then having regard to the allegations made in the first information report, the protest petition of the revisionist ought to have been treated as complaint and after following the procedure laid down in Chapter XV Cr.P.C., he ought to have decided whether the complaint may be dismissed or process against the accused should be issued. In case the process is issued against the accused, then the final report has to be rejected.
12. On the basis of the foregoing discussion, I am of the considered opinion that the Magistrate is not bound to treat the protest petition as complaint in the cases where no criminal offences is disclosed on the basis of the allegations made in the first information report and in such cases, the final report may be accepted after dismissing the protest petition. However, in instant case, for the reasons mentioned herein-above, the protest petition filed by the revisionist against the final report ought to have been treated as complaint, as prima facie offences are disclosed on the basis of the allegations made in the first information report."
19. I have perused the judgment of this Court rendered in Nawab Saiyyed Zafar Hussain (supra), wherein the judgment of the Division Bench of this Court rendered in the case of Pakhando (supra), has been considered.
20. Considering the facts and circumstances of the issue, perusing the relevant records of the revision and the lower court record and considering the submissions of learned counsel for the parties and also settled proposition of law on the issue, I am of the considered view that while passing the impugned order dated 18.05.2005, the Additional Chief Judicial Magistrate, Room No.19, Sultanpur has not committed any error of law, infirmity or illegality.
21. In view of the above, the present revision is devoid of merits and, therefore, deserves to be dismissed and is hereby dismissed accordingly.
22. No order as to cost.
23. Let the lower court record be remitted back to the court concerned within a month along with a certified copy of this order.
Order Date :- 23.8.2018 Suresh/ [Rajesh Singh Chauhan,J.]