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Harish Chandra Singh And Another vs State Of U.P. And 2 Others on 19 October, 2019 cites

Harish Chandra Pathak Son Of Shri Shyam ... vs Anil Vats Son Of Shri Sumer Chand Vats And ... on 3 January, 2008

It does not need any further elaboration on the point than to observe that if the cognizance had been taken u/s 190(a) of Cr.P.C. the court would have proceeded in the matter as a complaint case and there was no occasion for it to have observed that the matter shall be proceeded with as a State case. The specific observation in this regard made by the court below as aforesaid conclusively rules out any supposed controversy about the nature of cognizance in the matter and the omission of sub-section in the order passed by the Magistrate does not constitute any such valid ground on the basis of which the impugned order may be quashed. Another argument made by the counsel that the court below was under compulsion to summon the accused for same offences under which the F.I.R. of the case was registered also falls short of impressing this court. When the final report is submitted before the court u/s 173(2) of Cr.P.C., the court has many options open before it. The court can accept the final report as such and consign it to record. It can also take a different view of the matter and may not agree with the inference drawn by the Investigating Officer and may reject the final report if the material contained in the case diary is such which makes out the commission of certain criminal offences and it is found that there are sufficient grounds to proceed against the accused for having committed those offences. While exercising this option the cognizance is taken u/s 190(b) of Cr.P.C. and the material which the Investigating Officer collects during the course of investigation is made the basis to decide whether a particular accused person or persons have committed certain offence or offences or not. The submission of charge sheet or final report is actually the inference drawn by the Investigating officer on the basis of the material which he collects during the course of investigation. He may not be always right in drawing this inference. That is why the court of Magistrate while it considers the final report submitted before it has to see, analyze and weigh the appropriateness of the inference drawn by the Investigating Officer. If he finds that the conclusion or the inference or the decision made by the Investigating officer is wrong and there was sufficient material contained in the case diary to justify the submission of charge sheet it can always proceed to take the cognizance in the matter and reject the final report. For all practical purposes such a cognizance shall be deemed to be u/s 190(b) of Cr.P.C. and all the consequent procedure shall be followed as if the charge sheet in the case was submitted. The law on this point is too well settled to be elaborated upon at any great length and there has not been any divergence of judicial opinion in this regard.
Allahabad High Court Cites 21 - Cited by 4 - S Bala - Full Document

H. S. Bains Director Small ... vs The State (Union Territory Of ... on 10 October, 1980

The decisions given by the Hon'ble Supreme Court in the cases of H.S. Bains Director Small Saving-cum-Deputy Secretary Finan vs. The State (Union Territory of Chandigarh) 1980 AIR 1883, Abhinandan Jha vs. Dinesh Mishra 1968 AIR 117 and Pakhandu vs. State of U.P. 2002 CrLJ 1210 are some of the representative pronouncements in this regard. Certain other options are also there open for the Magistrate to adopt like treating the protest petition as complaint or directing further investigation into the case, but discussion about them is neither germane nor needed in the context at hand. Now it does not stand to reason at all to say that if the Magistrate is to reject the final report he should summon the accused under all those sections regarding which the F.I.R. was registered. Once the Magistrate is required to exercise his judicial discretion and find out about the sufficiency of ground for proceeding against certain accused he has to see and be convinced about the sufficiency of material regarding certain accused for having committed certain offences. If he finds the material so collected by Investigating Officer deficient against certain accused, he is not at all bound to summon all the accused in a blanket manner for all the offences under which the F.I.R. might have been registered. It all depends upon the nature and sufficiency of material contained in the case diary. It is quite possible that the Magistrate may feel convinced that a particular accused has committed a particular offence or offences while certain other accused of the same case may appear to have committed certain other category of offence or offences. The cases where final report is accepted by the Magistrate, it is done only when he finds himself in complete agreement with the inference drawn by the Investigating Officer that none of the offences for which the F.I.R. was registered have been committed by any of the accused. It does not at all sound logical to say that either the final report is to be accepted as such or it is to be rejected in total and the Magistrate cannot exercise his judicial discretion to make any distinction between different accused persons with regard to the offences that are allegedly said to have been committed by them in the F.I.R. If the material contained in the case diary is such which does not persuade the Magistrate to summon the accused under certain section or sections he cannot be compelled to do so. The Magistrate's discretion in this regard cannot be questioned. Even in complaint cases, the complaint may be filed by complainant under many sections but the Magistrate has all the discretion not to summon the accused under all those sections. The material contained in the case diary may be such in a given case that may make out certain offences against certain category of accused and may not make out the same offences against certain other accused persons of the same case. The legal authority of the Magistrate in this regard or the judicial discretion which he has to exercise in this regard cannot be either doubted or diluted. Therefore if in this particular case the Magistrate has proceeded to summon certain accused persons under certain sections or has decided not to summon them under a particular section or sections it does not create any illegality at all. In fact this petition has been moved on behalf of the accused and the omission of Section 307 I.P.C. in the summoning order can hardly be said to be prejudicial to the accused at all. To the contrary it is the complainant side who may find it prejudicial and against his interest. At any rate the stage to frame the charge is yet to be arrived at and which offence is committed by which particular accused can be much more thoroughly gone into at the stage of the framing of the charge and the arguments in that regard may be much more elaborately placed before the concerned court below by the rival sides. Suffice it to observe that the impugned order does not reflect any element of perversity nor does this Court see any abuse of court's process having been committed. Ordinarily the judicial discretion of the court below is not lightly interfered with by this Court nor does this Court substitute the same by its own casually, unless it finds that the order suffers from some illegality or some such error of fact which may appear to have vitiated the order or which might appear to have caused miscarriage of justice. This Court does not see any breach of constitutional provisions either nor does it perceive any such flaw in the order which may persuade this Court to exercise its power under Article 227 of the Constitution of India for the purpose of quashing the impugned orders or proceedings.
Supreme Court of India Cites 32 - Cited by 312 - O C Reddy - Full Document

Abhinandan Jha & Ors vs Dinesh Mishra(With Connected Appeal) on 17 April, 1967

The decisions given by the Hon'ble Supreme Court in the cases of H.S. Bains Director Small Saving-cum-Deputy Secretary Finan vs. The State (Union Territory of Chandigarh) 1980 AIR 1883, Abhinandan Jha vs. Dinesh Mishra 1968 AIR 117 and Pakhandu vs. State of U.P. 2002 CrLJ 1210 are some of the representative pronouncements in this regard. Certain other options are also there open for the Magistrate to adopt like treating the protest petition as complaint or directing further investigation into the case, but discussion about them is neither germane nor needed in the context at hand. Now it does not stand to reason at all to say that if the Magistrate is to reject the final report he should summon the accused under all those sections regarding which the F.I.R. was registered. Once the Magistrate is required to exercise his judicial discretion and find out about the sufficiency of ground for proceeding against certain accused he has to see and be convinced about the sufficiency of material regarding certain accused for having committed certain offences. If he finds the material so collected by Investigating Officer deficient against certain accused, he is not at all bound to summon all the accused in a blanket manner for all the offences under which the F.I.R. might have been registered. It all depends upon the nature and sufficiency of material contained in the case diary. It is quite possible that the Magistrate may feel convinced that a particular accused has committed a particular offence or offences while certain other accused of the same case may appear to have committed certain other category of offence or offences. The cases where final report is accepted by the Magistrate, it is done only when he finds himself in complete agreement with the inference drawn by the Investigating Officer that none of the offences for which the F.I.R. was registered have been committed by any of the accused. It does not at all sound logical to say that either the final report is to be accepted as such or it is to be rejected in total and the Magistrate cannot exercise his judicial discretion to make any distinction between different accused persons with regard to the offences that are allegedly said to have been committed by them in the F.I.R. If the material contained in the case diary is such which does not persuade the Magistrate to summon the accused under certain section or sections he cannot be compelled to do so. The Magistrate's discretion in this regard cannot be questioned. Even in complaint cases, the complaint may be filed by complainant under many sections but the Magistrate has all the discretion not to summon the accused under all those sections. The material contained in the case diary may be such in a given case that may make out certain offences against certain category of accused and may not make out the same offences against certain other accused persons of the same case. The legal authority of the Magistrate in this regard or the judicial discretion which he has to exercise in this regard cannot be either doubted or diluted. Therefore if in this particular case the Magistrate has proceeded to summon certain accused persons under certain sections or has decided not to summon them under a particular section or sections it does not create any illegality at all. In fact this petition has been moved on behalf of the accused and the omission of Section 307 I.P.C. in the summoning order can hardly be said to be prejudicial to the accused at all. To the contrary it is the complainant side who may find it prejudicial and against his interest. At any rate the stage to frame the charge is yet to be arrived at and which offence is committed by which particular accused can be much more thoroughly gone into at the stage of the framing of the charge and the arguments in that regard may be much more elaborately placed before the concerned court below by the rival sides. Suffice it to observe that the impugned order does not reflect any element of perversity nor does this Court see any abuse of court's process having been committed. Ordinarily the judicial discretion of the court below is not lightly interfered with by this Court nor does this Court substitute the same by its own casually, unless it finds that the order suffers from some illegality or some such error of fact which may appear to have vitiated the order or which might appear to have caused miscarriage of justice. This Court does not see any breach of constitutional provisions either nor does it perceive any such flaw in the order which may persuade this Court to exercise its power under Article 227 of the Constitution of India for the purpose of quashing the impugned orders or proceedings.
Supreme Court of India Cites 44 - Cited by 586 - C A Vaidyialingam - Full Document

Shiv Kumar @ Pakhandu vs State Of U.P. on 16 October, 2019

The decisions given by the Hon'ble Supreme Court in the cases of H.S. Bains Director Small Saving-cum-Deputy Secretary Finan vs. The State (Union Territory of Chandigarh) 1980 AIR 1883, Abhinandan Jha vs. Dinesh Mishra 1968 AIR 117 and Pakhandu vs. State of U.P. 2002 CrLJ 1210 are some of the representative pronouncements in this regard. Certain other options are also there open for the Magistrate to adopt like treating the protest petition as complaint or directing further investigation into the case, but discussion about them is neither germane nor needed in the context at hand. Now it does not stand to reason at all to say that if the Magistrate is to reject the final report he should summon the accused under all those sections regarding which the F.I.R. was registered. Once the Magistrate is required to exercise his judicial discretion and find out about the sufficiency of ground for proceeding against certain accused he has to see and be convinced about the sufficiency of material regarding certain accused for having committed certain offences. If he finds the material so collected by Investigating Officer deficient against certain accused, he is not at all bound to summon all the accused in a blanket manner for all the offences under which the F.I.R. might have been registered. It all depends upon the nature and sufficiency of material contained in the case diary. It is quite possible that the Magistrate may feel convinced that a particular accused has committed a particular offence or offences while certain other accused of the same case may appear to have committed certain other category of offence or offences. The cases where final report is accepted by the Magistrate, it is done only when he finds himself in complete agreement with the inference drawn by the Investigating Officer that none of the offences for which the F.I.R. was registered have been committed by any of the accused. It does not at all sound logical to say that either the final report is to be accepted as such or it is to be rejected in total and the Magistrate cannot exercise his judicial discretion to make any distinction between different accused persons with regard to the offences that are allegedly said to have been committed by them in the F.I.R. If the material contained in the case diary is such which does not persuade the Magistrate to summon the accused under certain section or sections he cannot be compelled to do so. The Magistrate's discretion in this regard cannot be questioned. Even in complaint cases, the complaint may be filed by complainant under many sections but the Magistrate has all the discretion not to summon the accused under all those sections. The material contained in the case diary may be such in a given case that may make out certain offences against certain category of accused and may not make out the same offences against certain other accused persons of the same case. The legal authority of the Magistrate in this regard or the judicial discretion which he has to exercise in this regard cannot be either doubted or diluted. Therefore if in this particular case the Magistrate has proceeded to summon certain accused persons under certain sections or has decided not to summon them under a particular section or sections it does not create any illegality at all. In fact this petition has been moved on behalf of the accused and the omission of Section 307 I.P.C. in the summoning order can hardly be said to be prejudicial to the accused at all. To the contrary it is the complainant side who may find it prejudicial and against his interest. At any rate the stage to frame the charge is yet to be arrived at and which offence is committed by which particular accused can be much more thoroughly gone into at the stage of the framing of the charge and the arguments in that regard may be much more elaborately placed before the concerned court below by the rival sides. Suffice it to observe that the impugned order does not reflect any element of perversity nor does this Court see any abuse of court's process having been committed. Ordinarily the judicial discretion of the court below is not lightly interfered with by this Court nor does this Court substitute the same by its own casually, unless it finds that the order suffers from some illegality or some such error of fact which may appear to have vitiated the order or which might appear to have caused miscarriage of justice. This Court does not see any breach of constitutional provisions either nor does it perceive any such flaw in the order which may persuade this Court to exercise its power under Article 227 of the Constitution of India for the purpose of quashing the impugned orders or proceedings.
Allahabad High Court Cites 2 - Cited by 4 - P K Srivastava - Full Document
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