Allahabad High Court
Sukhpal Son Of Shri Ratan Singh, Sanji @ ... vs State Of U.P. And Bhawar Singh Son Of Shri ... on 14 February, 2006
Equivalent citations: 2006CRILJ2238
Author: Vinod Prasad
Bench: Vinod Prasad
JUDGMENT Vinod Prasad, J.
1. Four applicants Sukhpal, Sanju alias Sanjeev, Jeete and Sonu, all the residents of village Kushawali, P.S. Sardhana, district Meerut have invoked inherent power of this Court Under Section 482 Cr.P.C. with the prayer of quashing of criminal proceedings pending against them being criminal case No. 521/9 of 2005 State v. Sukhpal and Ors. under Sections 323, 324, 504, 506, 307 and 392 IPC, P.S. Sardhana, district Meerut. The ancillary prayer is for stay of further proceedings of the aforesaid case pendent lite.
2. The factual matrix encapsulated, as is perceptible from the pleadings is that the respondent No. 2 Bhawar Singh filed an application Under Section 156(3) Cr.P.C. (application No. 182/2005) before the Judicial Magistrate, Sardhana, district Meerut, Under Section 147, 148, 323, 324, 504, 506, 307 and 392 IPC, with the allegation that he and the present applicants were the resident of village Kushawali. He was a farmer and peace-loving citizen, whereas the applicants were quarrel some persons. A drain was bone of contention between them hankering inter-se enmity. On 12.6.2005 at 6 P.M. respondent No. 2 Bhawar Singh and his brother Chandra Pal were returning, on a tractor, alter dumping wheat in the house of his another brother Bhopal Singhand when they reached near Madaiya Ki Paith, applicant No. 1 armed with Soth, applicant No. 2 armed with Farsa and applicants No. 3 and 4 armed with lathies, forcibly stopped the tractor pulled down Chandra Pal and belaboured him because of aforesaid animosity. On hue and cry being raised, witnesses Ghanshyam, Gajendra and Sanjiv and many passers by assembled and saved his brother Chandra Pal otherwise he would have been done to death. The assailant while escaping, committed robbery of Rs. 1500/- from them and also threatened them to desist from lodging the FIR otherwise they will be implicated in a false case. Bhawar Singh brought injured to Pyarey Lal Sharma Hospital Meerut where, finding his condition to be grievous, he was admitted in emergency alter giving first aid as doctor found his injuries dangerous to life. After being admitted in emergency for 24 hours, he was discharged on 13.6.2005. Respondent No. 2 sent a telegramme to SSP, Meerut that day itself and endeavored, in vain, to get his report lodged. No other way being in sight he wielded the power of the Magistrate through an application Under Section 156(3) Cr.P.C. (annexure 1), on 1.7.2005, appending therewith the dopy of telegramme sent to the SSP, Meerut, copy of the application sent to the DIG, Meerut, alongwith the medical report, discharge slip and x-ray report of the injured Chandra Pal with the prayer that the police of P.S. Sardhana be directed to take action against culprits by registering FIR. Under the orders of the magistrate, the FIR Crime No. 11 of 2005, under Sections 323, 324, 307, 504, 506 and 392 IPC (annexure 2) was registered at police station Sardhana district Meerut on 8.7.2005 at 5.00 P.M. against the applicant. The medical examination of the injured, dated 12.6.2005 shows two incised wounds on his head for which x-ray was advised but no fracture was detected under the injury. The police during the course of investigation recorded the statement of respondent No. 2 Bhawar Singh (informant). Dr. K.K. Karauli (who had examined the injured), Chandra Pal (injured), and witnesses Ghanshyam, Gajendra Singh and Sanjiv, who all supported the allegation of assault made by the applicants. Two other persons, Pratap and Hemant alias Hem Singh, however, did not support the prosecution case. After recording the said statements, the I.O. opined the incident to be false and consequently submitted a final report on 14.8.2005 in the court of Judicial Magistrate, Sardhana. The informant, respondent No. 2 filed a detailed protest petition against acceptance of the final report on 14.12.2005 mentioning therein that the IO, ignoring the injuries and the statements of the injured and other witnesses had submitted the final report and therefore he prayed that the FR be rejected and the accused be summoned. Alongwith the protest petition he appended his affidavit and the affidavits of witnesses. Judicial magistrate, Sardhana on 23.12.2005 rejected the final report and took cognizance Under Section 190(1)(b) Cr.P.C. and summoned the applicants Under Section 323, 324, 504, 506, 307 and 392 IPC, and directed that the case be tried as a State Case as a warrant trial and fixed 6.2.2006 for appearance of the accused persons, the present applicants.
3. Hence this application Under Section 482 Cr.P.C. for quashing of the proceeding.
4. I have heard Sri I. K. Chaturvedi, learned Counsel for the applicants and learned AGA and have gone through the material on record.
5. Sri Chaturvedi firstly contended that the case is absolutely false. No visible injury of lathi was found on the person of the injured, therefore, the two applicants alleged to be armed with lathi have been falsely implicated. Secondly he contended that the injuries of the injured has been found to be simple in the nature, therefore, summoning of the applicants Under Section 307 IPC is bad in law. He further argued that the allegation of robbery was found to be false and therefore, no offence Under Section 392 IPC is made put and lastly he contended that final report was correctly submitted by the investigating officer. Along with the protest petition, affidavits of witnesses were filed, which had also been taken into consideration by the learned magistrate while summoning the applicants, and therefore, it should be presumed that the magistrate adopted the procedure of complaint case and consequently, without recording the statements Under Section 200 and 202 Cr.P.C., of all the witnesses of the complainant, the proceedings against the applicants is bad in law. On the basis of aforementioned submissions he concluded, by submitting that the whole procedure adopted by the trial court is without any application of the mind and against the provisions of Section 200 and 202 Cr.P.C. and is void, and the present application Under Section 482 Cr.P.C. should be allowed and the prosecution of the applicants be quashed.
6. Learned AGA on the contrary submitted that the injured was beaten by lathi and the doctor has stated in his statement Under Section 161 Cr.P.C. that the third injury was caused by hard and blunt object. He further contended that there is applicability of Section 34 IPC in present case as all the four accused persons participated in the incident. He further said that the injured has received injuries on the head and neck and prima-facie there was sufficient material to summon the applicants Under Section 307 IPC. He further contended that if no offence Under Section 392 IPC is made out then the applicant could claim discharge for the aforesaid offence before the trial court. He argued that the present application is bases on disputed questions of fact which can not be adjudicated upon by this Court, under inherent jurisdiction of 482 Cr.P.C. He, further said that there is nothing on record at this stage to conclude that the witnesses are not speaking the truth. Injury report of the injured prima-facie makes out a case of assault on the injured and consequently the prosecution cannot be nipped into bud without affording an opportunity to the prosecution to substantiate the allegation made by it. Learned AGA further contended that in this case the trial court has not considered the affidavits filed along with protest petition while summoning the applicants nor there was any new material which has been considered by it while summoning the applicants and therefore, there was no necessity to follow the procedure of a complaint case and record statements Under Section 200 and 202 Cr.P.C. He contended that merely by mentioning, as a fact, that the affidavits are also appended with the protest petition does not mean that the trial court has relied upon these affidavits and followed the procedure of complaint case. He pointed out that the Magistrate only relied upon the statement recorded by the police Under Section 161 Cr.P.C. in the case diary and on that basis alone the summoning order has been passed and therefore, he, in the last, concluded that the present application Under Section 482 Cr.P.C. is merit less and deserves to be dismissed.
7. Adjudging the submissions of rival sides it is to be noted that this Court in exercise of power Under Section 482 Cr.P.C. is not empowered to go into meticulous examination of statement recorded by the police to fetch out as to whether any offence is made out against the applicant or not. If, prima facie, the offence is disclosed the prosecution must be offered an opportunity to prove it's case. It has been laid down by the apex court that at the stage of summoning only a prima-facie case is to be seen. In this regard a reference may be made to the judgments of apex court State of Hariyana v. Chaudhary Bhajan Lal Nagawwa v. Veeronna Shirliggappa Konjalgi Janta Dal v. S.S. Chaudhary AIR 1996 SC 1977 State of Himanchal Pradesh v. Prathvi Chandra. Consequently, the first two submissions raised by the learned Counsel for the applicants does not commend itself and are merit less. Consequently rejected. Further, this Court in exercise of power Under Section 482 Cr.P.C. also cannot go into the question as to whether graver or lesser offence is disclosed as that is the province of the trial court at the stage of framing of charge. Under Section 482 Cr. P.C. only this much can be examined by this Court, as to whether any offence is disclosed or not, or as to whether the proceedings has been initiated with malafide intention or not and is vexatious or not. Vexed questions of fact and law can not be adjudicated upon under Section 482 Cr. P.C. and the said exercise is alien to the scope of the aforesaid provision. In this view of the matter the contention of the learned Counsel for the applicants that the magistrate did not apply its mind, while summoning also cannot be accepted. For summoning the accused there was sufficient material before the Magistrate and he has rightly exercised the jurisdiction vested in him. On the facts of the case at hand the submission of final report by the I.O., even though the injured witnesses have supported the prosecution version, was at illegal exercise of his power. Consequently, the magistrate has rightly rejected his opinion and summoned the applicants.
8. Coming to the last submission made by the learned Counsel for the applicants that the trial court should have followed the procedure of complaint case and should have recorded the statement of witnesses Under Section 200 and 202 Cr.P.C. before summoning the applicants as accused as it has taken affidavits filed in support of the protest petition into consideration and therefore it should be deemed to have followed the procedure of the complaint case is also devoid of merit. The counsel for the applicants in support of this submission has relied upon three judgments reported in (I) 2001 ACC 1096 Pakhando v. State (II) 2004 ACC 345 Anil Kumar Chahan v. State of U.P. and (III) 2001 ACC 720 Harikesh v. State of U.P. But before adverting to these rulings, a synopsized discussion of law on the point.
9. The Supreme Court in the case of H.S. Bains v. State, 1981 ACC page 146, laid down that once the final report is submitted by the I.O. Under Section 169 Cr.P.C., after completion of the investigation then the Magistrate is not bound to accept such recommendation made by the I.O. After receiving the report (Opinion) of the investigating officer that no offence is disclosed from the- investigation of the FIR, the magistrate has got three options firstly; he may take cognizance of the offence straight way looking into the case materials in the case diary and reject the final report Under Section 191(1)(b) or secondly, he may direct for further investigation into the offence or thirdly, he may treat the protest petition to be a complaint, register it as a complaint and then proceed to record the statements of complainant (the person who has filed the protest petition) and his witnesses Under Section 200 and 202 Cr.P.C. and then decide as to whether any offence is made out or not. In the event no offence is made out, he can dismiss the complaint Under Section 203 Cr.P.C. and if the offence is disclosed, he can summon the accused Under Section 204 Cr.P.C. If the Magistrate decide to register protest petition as a complaint and takes cognizance as such Under Section 190(1)(a) then he has to follow the procedure laid down in Chapter XV Cr.P.C. (Sectons 200 to 203 Cr.P.C.) But this procedure is to be observed by him only when he decides to register the protest petition as a complaint and not otherwise.
(Emphasis supplied)
10. In the backdrop of this proposition of law the contention of the learned Counsel for the applicants that the affidavits were filed in support of the protest petition, therefore, magistrate was bound to adopt the procedure of complaint case is to be examined. At a glimpse, the contention seems to be attractive but in essence is devoid of substance. When the notice is issued to the informant, before accepting the final report, affording him an opportunity of hearing, as to whether the final report be accepted or not, the opportunity must be meaningful and not an empty formality. At this stage the informant is free to support his case by filing the affidavits of the witnesses of the investigation for the limited purpose to show that a perusal of the case diary itself makes out an offence. If such affidavits or affidavit is filed it cannot be said that magistrate is bound to adopt and observe the procedure of complaint case. Merely because some affidavit, as aforesaid, have been filed alongwith the protest petition does not divest the magistrate to take cognizance Under Section 190(1)(b) Cr P. C. It is left to the discretion of the magistrate to adopt either of the two courses provided Under Section 190(1)(a) and 190(1)(b). He may summon the accused on the identical material contained in the case diary and affidavits filed for the purposes of non acceptance of final report under Section 190(1)(b) CrPC or he even can treat the protest petition, at the behest of the informant, to be a complaint, and then follow the procedure of complaint case. (Emphasis mine). Thus the magistrate can look into the case diary and the affidavit filed for the rejection of the final report and for taking cognizance Under Section 190(1)(b) and there is no bar to it if the affidavit reiterates the same facts which are mentioned in the case diary itself. Only because the affidavits are filed with the contents that the final report be rejected and accused be summoned, magistrate is not bound to follow the procedure of a complaint case and such an affidavit or affidavits does not takes away his power to act under Section 190(1)(b) Cr.P.C. If the contention of the counsel for the applicant for following the procedure of the complaint case in such an event is allowed to prevail then it will be repetition statements of those very facts contained in the case diary and affidavit and will, therefore be an unnecessary exercise by the magistrate loathing him with additional burden for no gains. Consequently the proposition that the magistrate was bound to follow the procedure of complaint case, when affidavit is filed for the purpose of not accepting the final report, advanced by the applicant's counsel, can not be accepted and is repelled and consequently rejected.
11. Now the present case. I have gone through the affidavits filed by the witnesses of the case diary investigation) in the present case. All the affidavits (annexure 10) recited that the final report be rejected and the applicants be summoned. In none of the affidavit it has been said that the accused be summoned ignoring the investigation conducted by the police and it, also, does not show any other material that is contained in the case diary. The submission of the learned Counsel for the applicant, on facts also is thus, misconceived, devoid of merit and is rejected. Resultantly the procedure observed by the magistrate cannot be faulted with.
12. Turning towards the ruling cited by the learned Counsel for the applicants (I) Pakhando and Ors. v. State of U.P. and Anr. 2001 (2) ACC 1096. This judgment by division bench of this Court is the out come of a reference made by Hon'ble Sushil Harkauli, J. The question referred was "whether the view taken in the aforesaid case of Mohabbat Ali is correct." Mohabbat Ali v. State of U.P. 1985 ACC 25 is relatable to the proposition as to whether the summoning court while summoning the accused on protest petition for offences triable by court of sessions is bound to follow the proviso to Section 202(2) Cr.P.C. for examining all the witnesses of the complainant before summoning or not? The said proviso mandates that if the offence is triable by courts of sessions then the Magistrate, while conducting inquiry under Section 202(1) Cr.P.C. shall call upon the complainant to produced all his witnesses and examine them on oath. The intention of the legislature behind the said proviso is clear and easily understandable. Magistrate in such cases is not the trial court and has to commit the case for the trial to the court of sessions. For that he has to follow the procedure Under Section 208 Cr.P.C. and furnish the statements and the documents to the accused as is referred to thereunder before making the committal order. Consequently, on the both the counts firstly, that the accused should come to know on what basis and on what evidence he has been sent for trial to the sessions trial court and secondly, the sessions court be in a position to know what is the evidence against the accused before it and for what offence, necessitated the enactment of the said proviso. While, dealing with the said proposition in Pakhando's Case (Supra) it was laid down in para 16 thereof;- "Where the Magistrate decides to take cognizance of the case under Section 190(1)(b) of the code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the code and consequently the proviso to Section 202(2) Cr.P.C. will have no application. It would however be relevant to mention that for forming such an independent opinion the magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to taker cognizance under Section 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under Section 200.
(Emphasis mine).
13. Thus "of any material other than investigation record" means facts not emerging from investigation records for making out an offence-and no other. Thus "of any material other than investigation record" means different and or added facts regarding the incident. If the Magistrate takes into consideration those new or added facts mentioned in the protest petition or affidavit for the purposes of summoning the accused then only he has to adopt the procedure of complaint case. The reiteration of those very facts regarding the incident in the protest petition and the affidavit filed in support thereof which finds place in the case diary does not indicate any material other than investigation record. Material means additional statement of fact regarding incident or the occurrence. It is the contents of document in protest petition and affidavit which imbibes "any other material" and not the nature of the document- affidavit and or protest petition itself. Consequently, by using phraseology "any other material" in the aforesaid judgment what this Court meant was additional statement in respect of incident and not the reiteration of those very facts, which has already been stated during the course of investigation. Repeatative narration of facts is not additional material but the reiteration of same material. (Emphasis mine) Consequently, Pakhando (supra) is of no help to the applicants as in the present case there is reiteration of the same facts without any other material in the affidavits which had been stated during investigation.
14. Harikesh and Ors. v. State of U.P. 2001 ACC 720 also negatives the contention raised by Mr. Chaturvedi and supports the above view taken by me by laying down. "That the perusal of case diary reveals that the I.O. did not record the statement of witnesses Ram Chandra, Mohd. Ali and Samser on the ground that they did not appear before him." Hence the contents of the affidavits of these three witnesses filed in support of the protest petition was "any other additional material" before the court. Anil Kumar Chauhan v. State of U.P. and Anr. 2004 ACC 345, vide para 9 of the said judgment, is in the direct contradiction with judgment in Pakhando (Supra) and runs counter to it and therefore is again of no help to the applicant's case.
15. For the reasons stated above, I do not find any merit in this application. It is hereby dismissed.