Allahabad High Court
Upendra Yadav @ Mantu Yadav And 2 Others vs State Of U.P. And Another on 25 November, 2019
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 76 Case :- APPLICATION U/S 482 No. - 42175 of 2019 Applicant :- Upendra Yadav @ Mantu Yadav And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amar Bahadur Maurya Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Vinod Kumar Maurya, learned counsel for the applicants, learned A.G.A for the State and perused the record.
This application under Section 482 Cr.P.C. has been filed seeking stay the effect and operation of the summoning order dated 24.07.2019 passed by Additional Chief Judicial/Civil Judge (Senior Division) Fast Track Court, Chandauli, as well as the entire proceedings of Criminal Case No. 138 of 2019, (State Vs. Upendra Yadav and others), under Sections 323, 504, 506, 427 and 392 I.P.C., Police Station- Baluwa, District- Chandauli.
Learned counsel for the applicants while pressing the present application under Section 482 Cr.P.C. submits that the court below while summoning the applicants has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial. It is further submitted that the court below has not taken into consideration the material placed before the trial court along with charge sheet and therefore the trial court has materially erred in summoning the applicants. The court below has summoned the applicants through a printed order, which is wholly illegal.
It is next submitted that no offence as described in the F.I.R. or in the statement of the witnesses recorded during the course of investigation has taken place and the whole story as narrated in the F.I.R. as well as in the statement of the witnesses has been cooked and manufactured, therefore the court below has materially erred in summoning the applicants, as such the order is liable to be set aside.
Learned A.G.A., however, opposes the contention of learned counsel for the applicants on the ground that the court below keeping in view the charge sheet and material submitted therewith, after applying judicial mind and finding sufficient material on record, summoned the applicants along with other co-accused persons to face trial and therefore there is nothing illegal so far as the order of summoning passed by the court below.
Having heard learned counsel for the parties and having perused the record, it is apparent that all submissions put forth by learned counsel for the applicants before this Court are pertaining to factual aspect of the matter and can only be considered by a criminal court in a full-fledged criminal trial, and it is not a stage where minute scrutiny of the evidence should have been made by the court below.
At this juncture, it is fruitful to have a look so far as the law pertaining to summoning of the accused persons, by taking cognizance on a police report filed under section 173 of the Cr.P.C., is concerned and the perusal of the case law mentioned herein below would clearly reveal that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since, it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the material collected by the investigating officer results in sufficient grounds to proceed further and would constitute violation of law so as to call a person to appear before the criminal court to face trial. This discretion puts a responsibility on the magistrate concerned to act judiciously keeping in view the facts of the particular case as well as the Law on the subject.
In AIR 2012 SC 1747, Bhushan Kumar and Anr. v. State (NCT of Delhi) and Anr., the Apex Court has held that Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.
In AIR 2015 SC 923, Sunil Bharti Mittal v. Central Bureau of Investigation (Three Judges Bench) Hon,ble Apex Court held as under:
" 47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself.."
The provisions relating to the power of the police to investigate into offences and the procedure to be adopted by them are to be found in Chapter XII which falls under the heading 'Information to the Police and their powers to investigate'. Under Section 156 (1) of the Code an officer-in-charge of a police station may investigate any cognizable offence without any order of the Magistrate, however, this is not a case pertaining to non-cognizable cases, wherein without an order from a Magistrate specified in Section 155(2) no investigation can be made. Any Magistrate empowered under Section 190 may order, under Section 156 (3), before taking cognizance of offence, the police to investigate into a cognizable case. Section 157 prescribes the procedure to be followed by the officer-in-charge of a police-station when he has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate and in such an eventuality he will forthwith send a report of the same to a Magistrate, empowered to take cognizance of such offence upon a police report and proceed in person, or depute any one of his subordinate officers to investigate the case. No need to say that if there is sufficient material/ evidence against accused person(s) arrest of the offender may be made. Where the S.H.O. of a police station take a decision not to investigate an cognizable offence the Magistrate even then may direct the police to make an investigation under section 156(3) of the Cr.P.C. Above mentioned provisions clearly demonstrate that scheme of the Code is that an investigation should take place into a cognizable offence and the investigation must be carried out and completed without delay. The investigation part is however left in entirety to the police and there is no scope of interference with the same.
Now come the next stage where after investigation the officer in charge of the police-station may find sufficient material against accused person(s) or may also not find sufficient material as the case may be. If sufficient evidence or reasonable grounds to justify the forwarding of the accused to a Magistrate have been found in investigation, such officer will forward the accused to a Magistrate empowered to take cognizance of the offence, under Section 170 of the Code. On the other side, if it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground to forward the accused to a Magistrate, he by virtue of Section 169 of the Code will release the accused, if in custody, on his executing a bond, to appear, if and when required, before a Magistrate empowered to take cognizance of the offence. The aforesaid provisions however make it very clear that in either eventuality, after completion of the investigation, the officer in charge of the police station will have to submit a report under Section 173, to the Magistrate. It is worthwhile to recall here that nowhere in the Code expression 'charge-sheet' or 'final report' has been used and Section 173 of the Code talks only about a report to be submitted by the police after completion of the investigation.
In Darshan Singh Ram Kishan v. State of Maharashtra reported in MANU/SC/0089/1971: (1971) 2 SCC 654, it was held that the process of taking cognizance does not involve any formal action, but it occurs as soon as the Magistrate applies his mind to the allegations and, thereafter, takes judicial notice of the offence. As provided by Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report."
In light of the judgments referred to above, it is explicitly clear that the order dated 24.07.2019 passed by Additional Chief Judicial/Civil Judge (Senior Division) Fast Track Court, Chandauli is cryptic and does not stand the test of the law laid down by the Apex Court. Consequently, the order dated 24.07.2019 cannot be legally sustained, as the Magistrate failed to exercise the jurisdiction vested in him/her resulting in miscarriage of justice.
Accordingly, the present criminal misc. application succeeds and is allowed at the admission stage without issuing notice to the prospective opposite parties, as they have no right to be heard at pre-cognizance stage. Order dated 24.07.2019 is, hereby, quashed.
The Additional Chief Judicial/Civil Judge (Senior Division) Fast Track Court, Chandauli is directed to exercise his discretionary power and decide afresh the application for summoning the applicants and pass appropriate orders in accordance with law keeping in view the observations made by this Court as well as the direction contained in the judgments referred to above within a period of two months from the date of production of a certified copy of this order.
With the above direction, the application stands allowed.
Order Date :- 25.11.2019 Priya