Allahabad High Court
Ismeet Singh Sethi vs The State Of U.P And Anr. on 9 July, 2019
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 28 Case :- U/S 482/378/407 No. - 3124 of 2013 Applicant :- Ismeet Singh Sethi Opposite Party :- The State Of U.P And Anr. Counsel for Applicant :- Sumit K. Srivastava Counsel for Opposite Party :- Govt. Advocate, Amar Singh, Amul Mani Tripathi, Dilip Kumar Singh Chauhan AND Case :- U/S 482/378/407 No. - 3267 of 2016 Applicant :- Ismeet Singh Sethi Opposite Party :- State Of U.P. And Others Counsel for Applicant :- Sumit Kumar Srivastava Counsel for Opposite Party :- Govt. Advocate, Arun K Shukla, Dilip Kumar Singh Chauhan Hon'ble Chandra Dhari Singh,J.
The petition under Section 482 Cr.P.C. No.3124 of 2013 has been filed for quashing the entire proceedings of F.R. No.70 of 2013 (State vs. Ismeet Singh and others) arising out of case crime no.692-A of 2012, under Sections 419, 420, 504, 506, 465, 467 and 468 I.P.C. relating to P.S. Kotwali Nagar, District Barabanki as well as impugned summoning order dated 03.06.2013 passed by Additional Chief Judicial Magistrate, court no.12, Barabanki.
The petition under section 482 Cr.P.C. No. 3267 of 2016 has been filed for quashing the order dated 29.02.2016 passed by the learned Chief Judicial Magistrate, Court no.18 Barabanki in Criminal Case No.418 of 2013 (Sudhir Kumar vs. Ismeet Singh) arising out of case crime no.692 of 2012 under sections 419, 420, 465, 467, 468, 504, 506 IPC, P. S. Kotwali Nagar, District Barbanki.
Since both the petitions arising out of the same incident, they are heard together and are being decided by this common order. For the sake of convenience, facts of petition under Section 482 Cr.P.C. No.3124 of 2013 is being taken for the disposal of the case.
Brief facts of the case are that the petitioner Sri Ismeet Singh Sethi is the manager of Auto Management and Insurance Service Company. On 15.03.2012 one Sri Sudhir Kumar through opposite party no.2 Sri Nand Kishore Srivastava, who is the agent of the said company, had applied for insurance of his Truck bearing its registration no.U.P.-32-A/1187. An incident took place by the Truck of Sri Sudhir Kumar and his truck was seized by the police and later on the said truck was released by the court concerned in favour of the vehicle owner on the release application moved by him. After the release of the vehicle, the owner of vehicle came to the petitioner's company and started pressurizing him to pay the compensation, which was refused by the petitioner. On denial of the compensation, two First Information Reports have been lodged - one by Sri Sudhir Kumar, the truck owner as Case Crime No. 692 of 2012 and another by Sri Nand Kishore as Case Crime no.692-A of 2012, who is an agent of the Company.
After lodging of the first information reports, the investigating officer has investigated the matter and filed the final report in both the cases before the court concerned on 01.03.2013 and 06.04.2013. On the final reports, the court below was pleased to issue notice to the complainant and thereafter the complainants moved a protest application along with the affidavits.
In case crime no.692 of 2012 the court below has rejected the final report submitted by the investigating officer vide order dated 01.03.2013 and directed to proceed the case against the petitioner as State Case.
In case crime no. 692-A of 2012, the protest application was rejected by the court below vide its order dated 24.05.2014. Being aggrieved with the order dated 24.05.2014, the complainant filed a Criminal Revision No.95 of 2014 before the District and Sessions Judge, Barabanki, which was decided vide order dated 16.09.2014 remanding the matter back to the learned court below and in pursuance of the order passed by the learned Sessions Judge, the court below was pleased to pass the impugned summoning order dated 29.02.2016.
Both the orders passed by the court below have been challenged before this court by filing two petitions under section 482 Cr.P.C..
With this background, learned counsel for the petitioner has submitted that the learned Magistrate has rejected the final report and considered the protest petition and summoned the petitioner under section 190 (1)(b) Cr.P.C., which is totally illegal and against the procedure laid down under section 190 Cr.P.C. It has also been submitted that where the police submitted the final report, though it is open for the learned Magistrate to take cognizance under section 190(1) (b) Cr.P.C., on the basis of investigation, but in that event, he cannot take any external aid of any other piece of evidence or material, which does not form part of police papers, if he decides to take into account any material or evidence other than police papers prepared during investigation, he is bound to comply with the requirement of section 200 and 202 Cr.P.C. but in the present case, the learned Magistrate has taken into consideration the affidavit of the complainant filed along with the protest petition, which is contrary to the procedure as prescribed in law.
Learned counsel for the petitioner further submitted that while issuing the summoning order, the learned Magistrate has totally ignored the materials and evidences collected by the investigating officer. It has also been submitted that the learned Magistrate has committed manifest error of law while issuing the summoning order. It has further been submitted that the summoning orders issued by the court concerned are illegal, contrary to the law established and without applying the judicial mind. Lastly, he submits that the entire proceedings are initiated on the basis of false protest application and the impugned summoning orders are clear cut of abuse of process of the law and also not sustainable in the eyes of law and the same are liable to be quashed.
Per contra, learned counsel for the complainant as also the learned AGA for the State have vehemently opposed the submissions made by the learned counsel for the petitioner and submitted that there are no illegality in the summoning order passed by the courts below. Learned AGA as well as well as the learned counsel for the complainant have placed reliance in the case of Gana Ram and another vs. State of U.P and another reported at (2006) 1 JIC 735 (Alld.) wherein in para 6 and 7, the following has been held :
"In the instant case, no doubt the protest petition was filed as well as the affidavits have been mentioned in the impugned order but the Magistrate did not follow the procedure of the complaint case and proceeded to record the evidence and has taken cognizance. It is absolutely clear that the Magistrate has taken cognizance under Section 190(1)(b) and not under Section 190(1)(a) Cr. P. C. Merely mentioning the recital of the affidavits in the order is not sufficient to come to a conclusion that the Magistrate has taken cognizance under Section 190(1)(a) Cr. P. C. In that event, the Magistrate' would have proceeded to record statement of the complainant and other witnesses. Since nothing was done but the Magistrate has summoned the accused after taking cognizance, it is absolutely clear that this is a case, where the cognizance has been taken under Section 190(1)(b). This has also been held in a decision by the Apex Court in the case of M/s. India Carat Pvt. Ltd. v. State, 1989 Allahabad Criminal Rulings 178. Paragraph 14 of the said judgment is quoted below:
"Since in the present case the Second Additional Chief Metropolitan Magistrate has taken cognizance of offences alleged to have been committed by the second respondent and ordered issue of process without first examining the appellant and his witnesses, the question for consideration would be whether the Magistrate is entitled under the Code to have acted in that manner. The question need not detain us for long because the power of a Magistrate to take cognizance of an offence under Section 190(1)(b) of the Code even when the police report was to the effect that the investigation has not made out any offence against an accused has already been examined and set out by this Court in Abhinandan Jha vs. Dinesh Mishra (1967) 3 SCR 668 and H. S. Bains v. State, 1980 A Cr R 423 : 1981 (1) SCR 935 : (AIR 1968 SC 117) : (AIR 1980 SC 1883. In Abhinandan Jha vs. Dinesh Mishra (supra) the question arose whether a Magistrate to whom a report under Section 173(2) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge sheet, on his disagreeing with the report submitted by the Police. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3) and if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police, the Court observed that the Magistrate could take cognizance under Section 190(1)(c). The reference to Section 190(1)(c) was a mistake for Section 190(1)(b) and this has been pointed out in H. S. Bains (supra)."
7. Looking to the facts and circumstances of the case, I am not in agreement with the submissions made by the Counsel for the applicants. Since the protest petition was filed and the affidavits were also on record, which also finds mention in the order, the Magistrate has taken cognizance under section 190(1)(a). The case diary was before the Magistrate and he has formed his opinion independently. The material before the Magistrate was sufficient to summon the accused. It is a case, where the cognizance has been taken by the Magistrate after he was satisfied that prima facie case is made out and summoned the accused under Section 190(1)(b) Cr. P. C. The application lacks merit and is accordingly rejected."
Learned AGA has also placed reliance of the Judgment of Hon'ble the Apex Court in the case of M/s India Carat Pvt. Ltd. vs. State of Karnataka and another; AIR 1989 SCC 885, wherein the following has been held :
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 can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer ;and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190 (1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under section 190 (1) (b) though it is open to him to act under Section 200 or 202 also. The High Court was, there- fore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.
The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156 (3), the police would have had to submit a report under Section 173 (2). It has been held in Tufa Ram & Ors. v. Kishore Singh, [1978] 1 SCR 615 that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190 (1) (b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with. In the light of our conclusion, the appeal succeeds and the order of the High Court is set aside. The order of the Second Additional Chief Metropolitan Magistrate, Bangalore will stand restored and the case against the second respond- ent will be proceeded further in accordance with law."
Learned AGA as well as the learned counsel for the complaint submits that in view of the law laid down by this Court as well as by Hon'ble the Apex Court, there are no illegality in the order passed by the courts below and both the petitions are liable to be dismissed.
I have heard the counsel for the parties and perused the pleadings on record.
Learned Magistrate after considering the material facts of the case, prima-facie satisfied that there are sufficient materials against the petitioners for the offence as alleged in the first information report and he has rightly summoned the petitioner.
The power under Section 482 Cr.P.C. is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, Apex Court and various High Courts, including ours one, have reminded when exercise of power under Section 482 Cr.P.C. would be justified, which cannot be placed in straight jacket formula, but one thing is very clear that it should not preampt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below. If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C. but it should be exercised sparingly.
At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage.
Considering the facts and circumstances of the case, I do not find any ground to quash the order of summoning therefore, the prayer for quashing the same is hereby refused.
Both the petitions are dismissed accordingly.
Order Date :- 9.7.2019 VNP/-