Allahabad High Court
Balram Yadav Alias Balram And Another vs State Of U.P. Thru. Prin. Secy. Home Lko ... on 7 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- APPLICATION U/S 482 No. - 8834 of 2022 Applicant :- Balram Yadav Alias Balram And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko And 3 Others Counsel for Applicant :- Avinash Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Avinash Kumar Srivastava, learned counsel for applicants as well as learned Additional Government Advocate for the State and perused the record.
The instant application under Section 482 Cr.P.C. has been filed by the applicants namely Balram Yadav @ Balram and Mansa Ram with the prayer to quash the impugned summoning order dated 18.10.2022 passed by the Additional Sessions Judge/Special Judge, Court No.44, Barabanki in the case titled as 'State Vs. Ritesh Yadav & others', arising out of Case Crime No.247 of 2022, under Sections 363, 366 I.P.C. & 16/17 of the P.O.C.S.O. Act, Police Station Ram Nagar, District Barabanki and charge sheet no.2 dated 15.10.2022 as well as entire proceedings of the above mentioned case pending before the court below.
Learned counsel for the applicants while referring to the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. vehemently submits that no allegation of any kind has been levelled by the prosecutrix after her recovery against the instant applicants and it is only stated by her that she had gone with the co-accused Sitaram and solemnized marriage with him and also remained with him as his wife.
It is also submitted that in the whole case diary, there is no iota of evidence, which may connect, even remotely, the applicants with the alleged crime and therefore, the pendency of the instant case before court below is nothing but the abuse of process of law. The investigating officer as well as the special court has committed manifest illegality in submitting charge sheet and in taking of cognizance of the offence and in issuing summons to the applicants to face trial.
Learned A.G.A. on the other hand submits that after thorough investigation, charge sheet has been submitted and the special court after application of judicial mind has taken cognizance of the offence and thus there is no illegality either in submitting charge sheet or in taking of cognizance by the special court.
Having regard to the facts and circumstances of the case and keeping in view the order intended to be passed, issuance of notice to the opposite party no.2 is hereby dispensed with as only the duty is being reminded to the special court.
The main contention of learned counsel for the applicants is that charge sheet has been submitted against the instant applicants without there being any evidence at all. The law with regard to the taking of cognizance and summoning of accused persons at the stage of Section 190(1)(b) and 204 Cr.P.C. is now no more res integra and the same has been settled by the Hon'ble Supreme Court by passing catena of judgements.
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(2) 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 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 SUPREME COURT 1747, Bhushan Kumar and Anr v. State (NCT of Delhi) and Anr the Apex Court has held that "10. 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 M/s. India Carat Pvt. Ltd. Vs. State of Karnataka; MANU/SC/0349/1989 : 1989(26) ACC 280 (SC), Hon'ble Supreme Court has observed in para 16 of judgment that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to 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 of making out a case against accused. Magistrate can ignore conclusion arrived at by Investigating Officer, independently applying his mind to the facts emergent from investigation and can take cognizance of case or in alternative he can take cognizance of original complaint and examine complainant and his witness and thereafter issue process to accused, if he is of opinion that the case should proceed. Following observations of Court fortify what is observed above:
"16. 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 Section 202 also. The High Court was, therefore, 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.
17. 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 Tula Ram and others Vs. Kishore Singh MANU/SC/0163/1977 : 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 case of Nupur Talwar vs C.B.I. reported in 2013 AIR SCW 369, the Hon'ble Supreme Court has held as under :-
"10. 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."
Honble Supreme Court in a recent decision State of Gujrat Vs Afroz Mohammed Hasanfatta reported in 2019 SCC online SC 132 while considering the obligation of magistrate at the time of issuance of summons to the accused persons while taking cognizance of offences on a police report submitted under section 173 of the Code Of Criminal procedure, formulated following point and answered it as under :-
"While taking cognizance of an offence under Section 190(1) (b) Cr.P.C., whether the court has to record reasons for its satisfaction of sufficient grounds for issuance of summons:-
19. In a case instituted on a police report, in warrant cases, under Section 239 Cr.P.C., upon considering the police report and the documents filed along with it under Section 173 Cr.P.C., the Magistrate after affording opportunity of hearing to both the accused and the prosecution, shall discharge the accused, if the Magistrate considers the charge against the accused to be groundless and record his reasons for so doing. Then comes Chapter XIX-C ? Conclusion of trial - the Magistrate to rendering final judgment under Section 248 Cr.P.C. considering the various provisions and pointing out three stages of the case. Observing that there is no requirement of recording reasons for issuance of process under Section 204 Cr.P.C., in Raj Kumar Agarwal v. State of U.P. and another 1999 Cr.LJ 4101, Justice B.K. Rathi, the learned Single Judge of the Allahabad High Court held as under:-
"As such there are three stages of a case. The first is under Section 204 Cr. P.C. at the time of issue of process, the second is under Section 239 Cr. P.C. before framing of the charge and the third is after recording the entire evidence of the prosecution and the defence. The question is whether the Magistrate is required to scrutinise the evidence at all the three stages and record reasons of his satisfaction. If this view is taken, it will make speedy disposal a dream. In my opinion the consideration of merits and evidence at all the three stages is different. At the stage of issue of process under Section 204 Cr. P.C. detailed enquiry regarding the merit and demerit of the cases is not required. The fact that after investigation of the case, the police has submitted the charge sheet, may be considered as sufficient ground for proceeding at the stage of issue of process under Section 204 Cr. PC., however subject to the condition that at this stage the Magistrate should examine whether the complaint is barred under any law, ??? At the stage of Section 204 Cr. P.C. if the complaint is not found barred under any law, the evidence is not required to be considered nor the reasons are required to be recorded. At the stage of charge under Section 239 or 240 Cr. P.C. the evidence may be considered very briefly, though at that stage also, the Magistrate is not required to meticulously examine and to evaluate the evidence and to record detailed reasons.
21. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient ground for proceeding?.."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming 16 that the accused has committed an offence?..". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.
22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file."
Perusal of the record in the background of the submissions made by learned counsel for the applicants would reveal that in the F.I.R., which has been lodged by the uncle of the prosecutrix on 23.04.2022 at Police Station Ram Nagar, Barabanki against the named accused persons, it is stated that the nephew of the informant aged about 17 years had been enticed away by Sitaram with the help of other co-accused persons in the intervening night of 8/9.04.2022. It is also alleged that the prosecutrix had also taken with her some Jewellery. It is also alleged that the other co-accused persons had abated the commission of crime, however, after recovery of the prosecutrix her statement was recorded under Sections 161 and 164 Cr.P.C. Admittedly she had not imputed any allegation, of any kind, against the instant applicants. The investigating officer had submitted charge sheet against five persons including the instant applicants excluding rest, who were named in the F.I.R.
Thus, having regard to the fact that the prosecutrix after recovery in her statement recorded under Sections 161 and 164 Cr.P.C. has not named the instant applicants nor had uttered any imputation against them, in the considered opinion of this Court, the ends of justice would meet, if an opportunity be provided to the applicants/accused persons to move an appropriate application for discharge before the trial court through counsel.
Thus, the instant application is finally disposed of with a direction that within 15 days from today, the applicants may move an application for discharge under Section 227 Cr.P.C. before the special court and if the application as directed above is moved before the special court within the time stipulated herein-before, the special court shall be under an obligation to dispose of the same within next 30 days, strictly in accordance with law after providing an opportunity of being heard to the parties by passing a reasoned and speaking order.
It is further provided that till 45 days from today or till disposal of the discharge application, which may be moved by the applicants/accused persons before the special court, whichever is later, the applicants shall not be arrested in lieu of any coercive process, which might have been issued by the special court in the above mentioned case and they would also be permitted by the special court to move application for discharge through their counsel.
Order Date :- 7.12.2022 Anupam S/-