Allahabad High Court
Dabeer And 9 Others vs State Of U.P. And Another on 22 July, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 80 Case :- APPLICATION U/S 482 No. - 14899 of 2022 Applicant :- Dabeer And 9 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kundan Rai Counsel for Opposite Party :- G.A.,Sharique Ahmed Hon'ble Rajeev Misra,J.
1. Heard Mr. Rakesh Pandey, the learned Senior Counsel assisted by Mr. Kundan Rai, the learned counsel for applicants, the learned A.G.A. for State and Mr. Sagir Ahmad, the learned Senior Counsel assisted by Mr. Sharique Ahmed, the learned counsel representing first informant/complainant opposite party 2.
2. Perused the record.
3. This application under Section 482 Cr.P.C. has been filed challenging the order dated 15.11.2018 passed by Chief Judicial Magistrate, Kannauj in Misc. Case No. 06/11/2018 (Zunaid Vs Dabeer), arising out of Case Crime No. 907 of 2017, under Sections 147, 148, 140, 307, 323, 324, 504, 326, 308, 452 IPC and Section 7 Criminal Law Amendment Act, P.S. Gursahaiganj, District Kannauj, whereby the police report dated 13.11.217 (final report) submitted by Investigating Officer has been rejected, the protest petition filed by first informant/opposite party 2 against aforementioned police report has been allowed and the protest petition has been directed to be treated as a complaint as well as the summoning order dated 11.1.2022 passed by Chief Judicial Magistrate, Kannauj, in Complaint Case No. 2783 of 2018 (Zunaid Vs. Dabeer and others), under Sections 143, 148, 149, 307, 308, 323, 326, 452, 504, 506 IPC P.S. Gursahaiganj, District Kannauj.
4. At the very outset, counsel for the parties submit that present application be disposed of finally at the admission stage itself. Accordingly, with the consent of the counsel for the parties and as provided under the Rules of the Court, present application is being decided finally at the admission stage.
5. Record shows that in respect of an incident, which is alleged to have occurred on 16.8.2017, a prompt F.I.R. dated 16.8.2017 was lodged by first informant opposite party 2 Zunaid and was registered as Case Crime No. 907 of 2017, under Sections 147, 148, 140, 307, 323, 324, 504, 326, 308, 452 IPC and Section 7 Criminal Law Amendment Act, P.S. Gursahaiganj, District Kannauj. In the aforesaid F.I.R. twelve persons namely Ayayaj, Dabeer, Qadir, Rashid Babloo, Sajid, Laik, Lalla, Mustaq, Khalid, Qasim, Parvej, Guddu have been nominated as named accused, whereas 8-10 unknown persons have also been arraigned as accused.
6. The gravamen of the allegations made in the aforesaid F.I.R. is to the effect that on 16.08.2017 at around 10.30 p.m., the named accused along with others on account of old enmity committed the offence complained of, on account of which some persons from the side of first informant namely Mahfooz, Shaqil, Bhoora, Farhan and Samshunnisha sustained injuries
7. After registration of aforementioned F.I.R. Investigating Officer proceeded with statutory investigation of concerned Case Crime Number in terms of Chapter XII Cr. P. C. Investigating Officer on the basis of statements of the witnesses examined under Section 161 Cr. P. C. as well as other material collected by him during the course of investigation came to the conclusion that no occurrence as alleged has occurred. He, therefore, opined to submit a final report. Accordingly, Investigating Officer submitted a police report dated 13.11.2017 in terms of Section 173 (2) Cr. P. C. i.e. a final report.
8. Feeling aggrieved by aforementioned final report dated 13.11.2017, first informant opposite party 2 filed a protest petition dated 9.1.2018 against the same. Chief Judicial Magistrate, Kannauj examined the police report in the light of averments made in the protest petition filed by first informant/opposite party 2. Ultimately concerned Magistrate by means of order dated 15.11.2018 allowed the protest petition, rejected the police report and further directed that the protest petition shall be registered as a complaint. Resultantly, Complaint Case No. 2783 of 2018 (Zunaid Vs. Dabeer and another) came to be registered in the Court of Chief Judicial Magistrate, Kannauj. Concerned Magistrate thereafter examined the complainant opposite party 2 in terms of Section 200 Cr. P. C. and his witnesses in terms of Section 202 Cr. P. C. On the basis of statement of complainant and that of his witnesses, concerned Magistrate examined the veracity of the allegations made in the complaint (protest petition) and being prima facie satisfied summoned the applicants by means of summoning order dated 11.1.2022, whereby and whereunder applicants have been summoned under Sections 147, 148, 149, 307, 308, 323, 326, 452, 504 and 506 IPC.
9. Feeling aggrieved by aforesaid orders passed by Chief Judicial Magistrate, Kannauj, applicants have now approached this Court by means of present application under Section 482 Cr. P. C.
10. Mr. Rakesh Pandey, the learned Senior Counsel for applicants assisted by Mr. Kundan Rai, the learned counsel for applicants submits that impugned order dated 15.11.2018 passed by Chief Judicial Magistrate, Kannuaj on the protest petition filed by first informant/opposite party 2 is manifestly illegal and without jurisdiction. Concerned Magistrate has not examined the papers accompanying the police report. To the contrary, concerned Magistrate has simply considered the police report and the protest petition. Same is clearly evident from the perusal of order dated 15.11.2018 passed by concerned Magistrate. Concerned Magistrate has not recorded any finding with regard to the material on record and whether there is any evidence against the accused in the papers accompanying the police report. He further submits that the findings recorded by the concerned Magistrate in the order dated 15.11.2018 are based upon conjecture and surmises. He has invited the attention of Court to the above findings, which are at page 167 of the paper book. Same are extracted herein under:-
"उल्लेखनीय है कि अभियुक्त पक्ष द्वारा पंजीकृत मुकदमा अन्य धाराओं के साथ हत्या के प्रयास के अपराध से संबंधित है। यह तथ्य स्वतः प्रकट करता है कि वादी एवं मजरूब पक्ष तथा अभियुक्त पक्ष के मध्य दुश्मनी है, उनके मध्य पूर्व से ही मुकदमा लंबित एवं प्रचलित है। ऐसी स्थिति में तहरीर में वर्णित घटना के घटित होने से इन्कार नहीं किया जा सकता है।
उपरोक्त सम्प्रेक्षण के आलोक में इस मत का हूँ कि विवेचक द्वारा प्रस्तुत प्रकरण में की गयी विवेचना विधिसम्मत नहीं है। विवेचक द्वारा की गयी कार्यवाही वादी के हितों के प्रतिकूल है।
विवेचक द्वारा एक ही आशय के शपथ पत्र प्राप्त कर प्रस्तुत प्रकरण जैसे गम्भीर मामलें को साक्ष्याभाव एवं अन्य तर्कों के आधार पर समाप्त किया गया है, जो सही नहीं है। विवेचना वस्तुनिष्ठ नहीं है।
वादी के विरोध याचिका के तर्ख तात्विक है, उसके द्वारा विभिन्न तर्कों के आधार पर अन्वेषण को पक्षपातपूर्ण एवं दूषित बताया गया है। वादी के तर्कों में बल है।
उपरोक्त सम्प्रेक्षण के आलोक में, वादी द्वारा प्रस्तुत विरोध याचिका न्यायालय में शर्ताधीन स्वीकार किये जाने का पर्याप्त आधार है। साथ ही प्रकरण विषेष में न्यायालय द्वारा स्वयं समुचित जाँच कर एवं साक्ष्य प्राप्त कर सम्यक विधिसम्मत कार्यवाही किया जाना न्यायोचित है।
तदनुसार यह विरोध याचिका स्वीकार की जाती है। मुकदमा अपराध संख्या-907/17 में प्रेषित अंतिम आख्या-163/17, दिनांकित 13.11.2017 निरस्त की जाती है।
विरोध याचिका परिवाद के रूप में पंजीकृत की जाये। पत्रावली वास्ते बयान अन्तर्गत धारा 200 दं०प्र०सं० दिनांक 15.12.2018 पेश हो।"
11. According to learned Senior Counsel, once the Magistrate was of the view that the investigation is not satisfactory or insufficient, then in that eventuality he ought to have directed for further investigation.
12. In the submission of learned Senior Counsel the issue with regard to the manner in which jurisdiction is to be exercised by Magistrate upon submission of police report is no longer res-integra and stands concluded by the judgement of Supreme Court in Vishnu Kumar Tiwari Vs. State of U.P., 2019 (8) SCC 27.
13. Attention of the Court was invited to the judgement of a learned single Judge in Criminal Revision No. 695 of 2001 (Hari Ram Vs. State of U.P. and another) 2016 ADJOnline, 0185, wherein following has been observed in paragraphs 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the report:-
"19. This Court has also followed a similar line and some authorities, relevant in this regard, may be noticed for reference.
20. In Pakhando and others Vs. State of U.P. (supra), a Division Bench of this Court after considering Section 190 Cr.P.C. has held that if upon investigation Police comes to conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify forwarding of accused for trial and submits final report for dropping proceedings, Magistrate shall have following four courses and may adopt any one of them:
(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;
(II) He may take cognizance under Section 190(I)(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(I)(b) 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.
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 ''प्रस्तुत प्रोटेस्ट प्रार्थनापत्र व अभिलेखीय साक्ष्य के आधार पर" 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.
14. On the aforesaid premise, learned Senior Counsel concludes by submitting that Chief Judicial Magistrate, Kannauj has failed to exercise the jurisdiction vested in him while exercising his powers under Section 190 (1) (d) Cr. P. C. diligently. Concerned Magistrate was duty bound to examine the entire record and only after recording a finding that there is no evidence against applicants in the papers accompanying the police report, the concerned Magistrate could have proceeded with the protest petition as a compliant. The above having not been adhered to by concerned Magistrate renders the impugned order dated 15.11.2018 manifestly illegal and arbitrary.
15. It is then submitted that the summoning order dated 11.1.2022 is a consequential order. Once the basic order is unsustainable, the consequential order also cannot be sustained. On the aforesaid premise, it is urged by learned Senior Counsel that orders impugned in present application cannot be sustained in law and fact and therefore liable to be quashed by this Court.
16. Per contra, the learned A.G.A. and Mr. Sagir Ahamad, the learned Senior Counsel representing first informant opposite party 2 have opposed this application. Learned A.G.A. submits that concerned Magistrate has not committed any illegality in passing the impugned order dated 15.11.2018, whereby the protest petition filed by first informant/opposite party 2 has been directed to be treated as a complaint. Subsequent to above order dated 15.11.2018, applicants have been summoned to face trial. At this stage, according to learned A.G.A., Court below is not required to conduct a summary trial but has to only record its prima facie satisfaction. Reliance in support of above, is placed upon paragraph 37 of the judgement in Dr. Nupur Talwar Vs. Central Bureau of Investigation and Another, (2012) 11 SCC 465 wherein following has been observed:-
"37. The criterion which needs to be kept in mind by a Magistrate issuing process, have been repeatedly delineated by this Court. I shall therefore, first examine the declared position of law on the subject. Reference in this behalf may be made to the decision rendered by this Court in Cahndra Deo vs. Prokash Chandra Bose alias Chabi Bose and Anr., AIR 1963 SC 1430, wherein it was observed as under :
"(8) Coming to the second ground, we have no hesitation is holding that the test propounded by the learned single judge of the High Court is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry underSection 202has been considered. Amongst those decisions are :Parmanand Brahmachari v. Emperor, AIR 1930 Pat 20; Radha Kishun Sao v. S.K. Misra, AIR 1949 Pat 36;Ramkisto Sahu v. State of Bihar, AIR 1952 Pat 125;Emperor v. J.A. Finan, AIR 1931 Bom 524 andBaidya Nath Singh v. Muspratt, ILR14 Cal 141. In all these cases, it has been held that the object of the provisions ofSection 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction.The learned Judges in some of these cases have been at pains to observe that an enquiry under Section 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant."
17. Mr. Sagir Ahmad, the learned Senior Counsel for opposite party 2 has also supported the orders impugned in present application. According to learned Senior Counsel, in the present case there are two sets of evidence. One is the material collected by the Investigating Officer during the course of investigation and other is the statement of the complainant and his witnesses recorded under Sections 200 and 202 Cr. P. C. He submits that summoning of the applicants on the basis of second set of evidence can be maintained. Learned Senior Counsel has also relied upon the judgement of Apex Court in Dr. Nupur Talwar (supra). It is thus urged that in view of above, no indulgence be granted by this Court in favour of applicants.
18. Having heard the learned Senior Counsel for applicants, the learned A.G.A. and Mr. Sagir Ahmad, the learned Senior Counsel for first informant/complainant opposite party 2 and upon perusal of record, the Court finds that the issue which arises for determination in present application;- is whether the order dated 15.11.2018 passed by concerned Magistrate is in accordance with law.
19. The findings returned by concerned Magistrate in the order dated 15.11.2018 on the basis of which conclusion has been drawn by him to treat the protest petition filed by first informant/complainant opposite party 2 as a complaint have already been extracted above.
20. When the findings recorded by concerned Magistrate as noted above, are examined in the light of the observations contained in paragraph 28 of the judgement in Hari Ram (supra) do not fulfill the mandate of law which the Magistrate is required to comply while exercising jurisdiction under Section 190 (1) (b) Cr. P. C. No finding has been recorded by concerned Magistrate with regard to the papers accompanying the police report. Without recording any finding that there is no evidence against applicants in the papers accompanying police report, the conclusion drawn by Magistrate to treat the protest petition as a complaint is not only illegal, but also arbitrary. Once the Magistrate came to prima facie conclusion that investigation of concerned case crime number is unsatisfactory or is the outcome of lackadaisical approach of investigating Officer, then in that eventuality, concerned Magistrate ought to have directed further investigation in the matter. The findings recorded by concerned Magistrate in support of his conclusion to treat the protest petition as a complaint are by themselves insufficient to proceed with the protest petition as a complaint.
21. For the facts and reasons noted above, the present application succeeds and is liable to be allowed.
22. It is, accordingly, allowed.
23. The impugned order dated 15.11.2018 passed by Chief Judicial Magistrate, Kannauj in Misc. Case No. 06/11/2018 (Zunaid Vs Dabeer), arising out of Case Crime No. 907 of 2017, under Sections 147, 148, 140, 307, 323, 324, 504, 326, 308, 452 IPC and Section 7 Criminal Law Amendment Act, P.S. Gursahaiganj, District Kannauj is, hereby, quashed.
24. As the basic order has been quashed, the consequential order dated 11.1.2022 is also quashed.
25. Concerned Magistrate shall pass a fresh order on the protest petition filed by first informant/opposite party 2 in the light of observations made hrein above, within a period of two months from the date of production of a certified copy of this order before him.
26. Application is allowed.
27. Cost made easy.
Order Date :- 22.7.2022 HSM