Allahabad High Court
Ram Nyan Mishra vs State Of U.P. & Others on 25 March, 2021
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 33 Case :- U/S 482/378/407 No. - 1014 of 2021 Applicant :- Ram Nyan Mishra Opposite Party :- State Of U.P. & Others Counsel for Applicant :- Rakesh Dwivedi,Krishna M. Pandey Counsel for Opposite Party :- G.A. Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
The instant application has been filed against the order dated 02.11.2020 passed by learned Additional Civil Judge (A.Kh.)/Judicial Magistrate, Room No.27, District- Sultanpur whereby the learned Magistrate has dismissed the protest application filed by the applicant on the ground of maintainability because it was filed after cognizance of offence.
Learned counsel for the applicant submits that the applicant is informant of Case Crime No.0051 under Sections 323, 504, 506, 452, 324 & 308 I.P.C., Police Station- Haliyapur, District- Sultanpur, which was lodged against respondents no.2 to 5 but during investigation Investigating Officer illegally exonerated respondent no.2-Shiv Karan and respondent no.3- Chandra Prakash and filed the charge sheet only against respondent nos.4 and 5 for offence under Sections 323, 504 and 506 I.P.C. Learned counsel further submits that aggrieved with the charge sheet, filed by the Investigating Officer, the applicant/informant filed the protest petition before the concerned Magistrate but the same was dismissed as not maintainable as the cognizance was taken.
Learned counsel for the applicant submits that the impugned order passed by the Magistrate is cryptic, illegal and without applying any judicial mind.
Per contra, learned A.G.A. submits that there is no illegality in the said order.
It is settled provision of law that after taking cognizance and before framing charges the Magistrate may pass suitable order on the police report either suo motu or on the application (protest petition) filed by the informant/complainant/aggrieved person and the Magistrate can not reject the said application only on the ground of maintainability as he has taken cognizance of the offence.
Hon'ble Supreme Court in Vinubhai Haribhai Malaviya and others vs. State of Gujarat and another, AIR 2019 SC 5233 where the question was involved whether Magistrate can direct for further investigation after taking cognizance of a case, three Judges Bench of Hon'ble Supreme Court has held as under :
"23. It is thus clear that the Magistrate?s power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a ?proper investigation? takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to enure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the ?investigation? referred to in Section 156(1) of the CrPC would, as per the definition of ?investigation? under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC."
XXX XXX "25. Whereas it is true that Section 156(3) remains unchanged even after the 1973 Code has been brought into force, yet the 1973 Code has one very important addition, namely, Section 173(8), which did not exist under the 1898 Code. As we have noticed earlier in this judgment, Section 2(h) of the 1973 Criminal Procedure Code defines ?investigation? in the same terms as the earlier definition contained in Section 2(l) of the 1898 Criminal Procedure Code with this difference ? that ?investigation? after the 1973 Code has come into force will now include all the proceedings under the CrPC for collection of evidence conducted by a police officer. ?All? would clearly include proceedings under Section 173(8) as well. Thus, when Section 156(3) states that a Magistrate empowered under Section 190 may order ?such an investigation?, such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of ?investigation? contained in Section 2(h)."
Thus, in view of law laid down by Hon'ble Supreme Court, it is clear that even after taking cognizance of an offence the concerned Magistrate may pass suitable order in appropriate case.
Coming to the facts of this case, in this case, first information report was lodged against four persons for offence under Sections 323, 504, 506, 452, 324 and 308 I.P.C. but during investigation two persons were exonerated and chargesheet was filed only against two persons for offence only under Section 323, 504 and 506 I.P.C. Learned Magistrate, in the impugned order, has not mentioned any word regarding the content and grievance of the applicant, mentioned in the said application (protest petition), and dismissed the application as not maintainable since the cognizance was taken.
In my view, the impugned order passed by the learned Magistrate is improper, illegal, non speaking and against the settled provision of law, which is liable to be set-aside.
The impugned order dated 02.11.2020 passed by learned Magistrate is set-aside.
Accordingly, the application is allowed.
The matter is remanded to the concerned Magistrate to pass suitable order on the application (protest petition) filed by the applicant, after affording, due opportunity of hearing.
Order Date :- 25.3.2021 sks