Allahabad High Court
Jagarnath vs State Of U.P. And 3 Others on 8 October, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- APPLICATION U/S 482 No. - 14368 of 2020 Applicant :- Jagarnath Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Dhirendra Singh,Manoj Kumar Chandel Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 07.08.2018 passed by Chief Judicial Magistrate, Mau in Criminal Misc. Case No.29 of 2016, arising out of Case Crime No.58 of 2010, under Sections 323, 325, 504, I.P.C., P.S. G.R.P. Mau and order dated 08.08.2019 passed by Sessions Judge, Mau, whereby the Criminal Revision No.215 of 2018 (Jagarnath Vs. State of U.P. and others) has been dismissed.
2. It has been argued by learned Counsel for the applicant that the applicant has lodged an first information report against opposite party no.2 to 4 but after investigation police have submitted final report. The applicant has preferred a protest petition and after that the Court below has referred the matter for further investigation but even after further investigation, again the final report was submitted. The applicant has again preferred protest petition, which has been treated as a complaint by the Court below vide impugned order dated 07.08.2018. Learned Counsel submitted that in the impugned order dated 07.08.2018 the Court below has observed that investigation of the matter was defective but despite that the protest petition was registered as complaint case. It was submitted that in such facts and circumstances, the court below must have taken cognizance as a State case and accused persons must have been summoned but the Court below did not consider the same.
It has been further argued that the impugned order dated 07.08.2018 was challenged before Session Court by filing Revision No.215 of 2018 but the Revisional Court also did not consider the matter in correct perspective and revision was dismissed vide impugned order dated 08.08.2019. It has been submitted that both the impugned orders are against facts and law and, thus, liable to be set aside. In support of his contentions learned Counsel has relied upon the case of Rajesh @ Raju and 4 others Vs. State of U.P. and another reported in 2017 Law Suit (All) 152 dated 16.01.2017.
3. Learned A.G.A. has submitted that there is no illegality or abuse of process of law in the impugned order and the applicant is free to lead its evidence in complaint case.
4. I have heard learned learned counsels for parties and perused the record.
5. Chapter XIV, Cr.P.C. deals with conditions requisite for initiation of proceedings and also the powers of cognizance of a Magistrate. Section 190, relevant for our purpose, is reproduced as under:
"190. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try."
6. Chapter XV of Cr.P.C. has four Sections, i.e., Section 200 to 203, which deal with complaint to Magistrate. Chapter XVI deals with commencement of proceedings before Magistrate and Section 204 empowers a Magistrate to issue summons or a warrant, as the case may be, to secure attendance of an accused, if in the opinion of Magistrate, there is sufficient ground to proceed and take cognizance of offence.
7. If magistrate finds that Police has not made proper investigation and submitted final report, it can direct police to make further investigation in the matter, or, if there is sufficient material, he can pass order taking cognizance and summoning accused.
8. As long back as in 1977, Supreme Court in Tula Ram Vs. Kishore Singh AIR 1977 SC 2401 said that Magistrate can ignore a final report submitted by Police including the conclusion and take cognizance of case under Section 190(1)(b) on the basis of material collected during investigation and issue process, or in the alternative, he may take cognizance of original complaint, examine the complainant and his witnesses and thereafter issue process to accused, if he is of opinion that case should be proceeded with.
9. It is fairly well settled position of law that if after investigation of a case police submits final report and against that final report, informant files protest petition, the Magistrate has jurisdiction to treat the protest petition as a complaint case. The Hon'ble Apex Court in Minu Kumari & Ors Vs. State of Bihar reported in 2006 (4) SCC 359 has observed that when final report has submitted before the Magistrate he has four options:
(i) After giving opportunity of being heard to the complainant and after applying mind to the material available in the case diary, accept final report and drop the proceeding.
(ii) After hearing the complainant and going through the record of the police report if satisfied that necessary ingredients of offence are made out on the basis of material collected during investigation the court may summon the accused straight way under Section 190(i)(b) Cr.P.C.
(iii) He may treat the protest petition of the complainant as complaint and proceed to inquire in the light of Chapter XV of Cr.P.C. and if found that there are sufficient material to proceed against the accused persons may summon the accused under Section 204 Cr.P.C. and if not, may dismiss the complaint under Section 203 Cr.P.C.
(iv) After considering the police report and material placed along with protest petition the Magistrate is of the view that further investigation is required in the matter, he may pass an order for further investigation in view of Section 173 (8) of Cr.P.C.
9. In view of aforesaid legal position, it is quite apparent that in the instant case the Magistrate has power to treat the protest petition filed by applicant / informant as a complaint to inquire in the light of Chapter XV of Cr.P.C. Merely because the Magistrate has observed that investigation was defective, it was not necessary for the him to take cognizance under section 190(1)(b) CrPC and to summon the accused, particularly when there is nothing to indicate that necessary ingredients of offence are made out on the basis of material collected during investigation. The revisional court has also considered the matter in correct perspective and revision was dismissed with a reasoned order. I have gone through the case law Rajesh @ Raju Vs. State of U.P. (supra) but it the specific attending facts and circumstances of the case, it does not help the applicant. No material illegality or perversity could be indicated in both the impugned orders. There is nothing to indicate that there was any abuse of the process of court.
10. In view of the aforesaid it is apparent that there is nothing to show any such exigency so as to warrant any interference by this court in exercise of powers under section 482 Cr.P.C.
11. The application under section 482 Cr.P.C, being devoid of any merit, is dismissed.
Order Date :- 8.10.2020 S.P.