Allahabad High Court
Afsar Jahan And Another. vs The State Of U.P.& Another. on 9 August, 2018
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 10 Case :- U/S 482/378/407 No. - 1418 of 2007 Applicant :- Afsar Jahan And Another. Opposite Party :- The State Of U.P.& Another. Counsel for Applicant :- Rishad Murtaza Counsel for Opposite Party :- Govt.Advocate,Rajendra Kumar Hon'ble Ritu Raj Awasthi,J.
Heard Mr. Rishad Murtaza, learned counsel for the applicants as well as learned Additional Government Advocate on behalf of the State.
Since only a trivial question of law is involved in this petition, as such, with the consent of parties' counsel the case has been finally heard and is being decided.
It is submitted by learned counsel for the applicant that by impugned order dated 17.1.2007 passed by Additional Chief Judicial Magistrate-I, Sitapur in Case No.118 of 2007 arising out of Crime No.358 of 2005, under Sections 498-A, 323, 504, 313 IPC read with Section 3/4 Dowry Prohibition Act learned court below has directed the case to be registered as state case which is not permissible under the law.
Submission is that FIR was lodged by opposite party no.2 which after due investigation culminated in the shape of final report. Since no material was found by the investigating agency about commission of the offence under the aforesaid sections. Upon protest petition having been filed by opposite party no.2 learned Magistrate had proceeded to record the statement of witnesses and thereafter rejected the final report and ordered the case to proceed as state case. It is contended that in view of the judgment of this Court in the case of Hari Ram Vs. State of U.P. and another; Criminal Revision No.695 of 2001 dated 6.5.2016 the learned Magistrate has committed gross illegality in directing it to be registered as a state case, it shall be registered as a complaint case and only thereafter the case could have been proceeded further.
Learned AGA appearing for the State does not dispute the aforesaid legal position. It is submitted that in case after submission of final report the learned court below comes to conclusion that it is not acceptable and on the basis of protest petition wants to proceed further the case has to be registered as a complaint case and it can only thereafter be proceeded any further.
In the case of Hari Ram Vs. State of U.P. and another (supra) this Court has discussed, in detail, the legal position in this regard and has held that in case the Magistrate is not satisfied with the final report submitted by the police and relies on the protest petition and the affidavit filed before him along with the protest petition, then he has to proceed adopting the procedure of complaint case under Chapter XV of Cr.P.C. and record the statement of complainant and the witnesses who had filed affidavit under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under Section 190 (1) (b) Cr.P.C. on the basis of protest petition and affidavit filed in support thereof. Paragraphs 21, 22, 23, 24, 25, 26, 27 and 28 in this regard are relevant, which read as under:-
"21. Thus the "material" which can be examined by Magistrate when Police submitted final report and upon notice issued to complainant, Protest Petition is filed along with some material by complainant, is confined to investigation only. When matter has been investigated by Police after registering a report, Magistrate obviously is not proceeding according to procedure prescribed in Chapter XV. I find that it would not be appropriate for Magistrate not to follow procedure under Section 200 and 202 Cr.P.C. but straightway relying on affidavits filed before him by complainant along with Protest Petition, take cognizance and summon accused after rejecting Police Report. This is not legal and permissible.
22. In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294, Police submitted final report which was not accepted by Magistrate, not on the basis of material collected by Police, but, relying on Protest Petition and accompanying affidavit Magistrate issued process. Court disapproved the aforesaid procedure adopted by Magistrate and said:
"Where the magistrate decides to take cognizance under section 190 (1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under section 190 (1) (b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e. protest petition and affidavits while taking cognizance under section 190 (1) (b) Cr.P.C. the impugned order is vitiated." (emphasis added)
23. In Kallu and others Vs. State of U.P. 2010 (69) ACC 780, Court said:
"Therefore, in present case also, if the material in the case diary was not sufficient for summoning the accused persons to face the trial, then the protest petition filed by the complainant against the final report ought to have been registered as complaint and after following the procedure laid down in section 200 and 202 Cr.P.C."
24. Court further held:
"If after taking evidence under section 200 and 202 Cr.P.C., the magistrate decides to take cognizance against the accused persons, final report has to be rejected, but in any case, cognizance cannot be taken merely on the basis of affidavits or other material filed by the complainant in support of the protest petition against final report without following the procedure laid down under Chapter XV Cr.P.C., if the material in the case diary is not sufficient to take cognizance."
(emphasis added)
25. In Mitrasen Yadav Vs. State of U.P. 2010 (69) ACC 540, Court said that on the basis of Protest Petition and documents filed therewith, no cognizance under Section 190(1)(b) Cr.P.C. can be taken.
26. In Criminal Revision No. 1601 of 2015 (Mukeem and 2 others Vs. State of U.P. and another) decided on 07.08.2015, Court while deprecating procedure followed by Magistrate by relying on Protest Petition and its documents, without following procedure of complaint, said:
"The impugned order shows that the Magistrate summoned accused persons presuming that oral evidence on behalf of first informant was adduced on protest petition, which is possible only when the protest petition was ordered to be treated as a complaint. The record shows that neither protest petition was ordered to be registered as complaint nor any oral evidence of the witnesses was recorded. Summoning of the accused persons on the basis of the oral evidence indicates that the Magistrate was satisfied with the fact that in evidence collected by the I.O, there was no sufficient material for taking cognizance. The learned Magistrate has also observed that the I.O. has committed a mistake in not recording the evidence of other witnesses. Summoning is also based on facts mentioned in the protest petition and documentary evidence, as mentioned in the order impugned ''izLrqr izksVsLV izkFkZuki= o vfHkys[kh; lk{; ds vk/kkj ij^^ which is erroneous in view of the law cited above."
(emphasis added)
27. In Writ Petition- Misc. Single No. 3776 of 2012 (Mohammad Shafiq Khan and others Vs. State of U.P. and others) decided on 24.03.2014, Court, in para 9, held as under:
"9. Therefore, it is clear from the above that the Magistrate on the basis of protest petition can reject the final report, he may treat the protest petition as complaint, he may also direct for further investigation. But in the facts of this case the Magistrate while rejecting the final report has also taken into consideration the affidavits filed along with protest petition and this approach of the Magistrate was not in accordance with law." (emphasis added)
28. Looking to exposition of law, discussed above, I find that in the present case Magistrate has not referred to any material placed before him or collected by Investigating Officer. Instead it has rejected final report on the basis of facts stated in Protest Petition and thereafter relying on the affidavits filed before him along with Protest Petition, proceeded to issue notice. The affidavits would not amount to a statement recorded by Magistrate under Section 200 and 202 Cr.P.C. Magistrate has not given any reason for rejecting Police report and nothing has been said in this regard except that in the light of affidavits placed before him along with Protest Petition, he finds that final report is liable to be rejected and accused would be summoned. This approach on the part of Magistrate, I find contrary to what has been laid down in the above authorities and the same cannot be sustained."
In view of above, I am of the considered view that the order impugned dated 17.1.2007 passed by Additional Chief Judicial Magistrate-I, Sitapur in Case No.118 of 2007 is not sustainable in the eyes of law. It is hereby set aside. Matter is remanded back to the learned court below to pass appropriate orders in accordance with law in the light of the observations made above.
In view of above, petition is allowed.
[Ritu Raj Awasthi, J.] Dated: 9th August, 2018 Ram.