HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Case :- APPLICATION U/S 482 No. - 6669 of 1999 Petitioner :- Ram Kishore & Others Respondent :- State Of U.P. & Another Petitioner Counsel :- Syed Wajid Ali Respondent Counsel :- Govt.Advocate Hon'ble Surendra Kumar,J.
1. Heard Sri Santosh Kumar Singh, Advocate, holding brief of Sri Syed Wajid Ali, learned counsel for the applicants and learned AGA for the State and perused the record.
2. The instant application under Section 482 Cr.P.C. on behalf of the applicants has been filed for quashing order dated 4.10.1999 passed by the learned 1st Judicial Magistrate, Aligarh, in Case No.65 of 1994, Durjan Singh Vs. Ram Kishor and others, whereby the learned Magistrate rejected the review application which has been affirmed by the learned VIIth Additional Sessions Judge, Aligarh, vide judgment and order dated 10.12.1999 in Criminal Revision No.376 of 1999 Ram Kishor and others Vs. State and Durjan Singh. Both the orders are under challenge in the instant application.
3. The facts of the case stated in brief are that the complainant Durjan Singh lodged the first information report on 12.12.1992 around 9:45 a.m. under Section 307 IPC at Police Station Jawa, District Aligarh against three accused persons namely Ram Kishor, Ram Dutt and Bhajan Lal (real brothers) at Case Crime No.301 of 1992. According to the first information report, one Ram Swaroop, younger brother of the complainant Durjan Singh, won election of Village Pradhan defeating Genda Lal which caused enmity between the two parties. In the intervening night of 11/12.12.1992 around 10 O' Clock when the complainant went to sleep at his house, he saw three accused persons standing there. When the complainant asked them the reason for standing there, they abused the complainant and just then the two accused persons Ram Dutt and Bhajan Singh each fired one shot from their respective Tamancha at the complainant with an intent to kill him. The third accused-Ram Kishor threw Saria (iron rod) towards the complainant causing injury to him. The complainant saved himself by taking shelter behind thresher. The accused persons were seen by the witnesses including the complainant in the moon light.
4. The Investigating Officer during investigation recorded statements of the witnesses and filed the final report before the Magistrate. The complainant Durjan Singh (opposite party no.2) herein filed the protest petition on 21.10.1993 against the final report asserting therein that the Investigating Officer had not recorded his statement as well as of the witnesses. The learned Magistrate vide order dated 4.1.1994 rejected final report and summoned the accused persons under Section 307 IPC fixing 18.2.1994 for appearance after perusing the case diary and other material. The learned Magistrate also directed that the case shall proceed as complaint case. The injured Durjan Singh sustained injuries of hard object on chest and shoulder as per his injury report. The accused persons who are applicants herein challenged the summoning order dated 4.1.1994 by filing objections for setting the summoning order. The learned Magistrate vide order dated 4.10.1999 rejecting the objection of the applicants observed that there was no legal infirmity in the order. The accused persons preferred Criminal Revision No. 376 of 1999 against the order dated 4.10.1999 before the learned Sessions Judge, Aligarh, on the ground that the learned Magistrate has rejected their objections without looking into case diary and facts of the case. The Criminal Revision was transferred to VIIth Additional Sessions Judge, Aligarh.
5. Learned VIIth Additional Additional Sessions Judge, dismissed Criminal Revision vide judgment and order dated 10.12.1999 finding no illegality, irregularity or infirmity and observed that whether the facts and circumstances of the case make out the case under Section 307 IPC can be adjudicated by the Court of Session at the time of hearing on the charge under Section 228 Cr.P.C. or during hearing of the case.
6. The accused persons/applicants herein have challenged the aforesaid impugned orders on the ground that learned Magistrate in the impugned order dated 4.1.1994 recorded the finding that the case would be tried as complaint case while on the other hand he without following compliance of Sections 190 (1) (b) and 202 (2) Cr.P.C., passed the impugned order.
7. It has been asserted in the instant application that since case under Section 307 IPC is exclusively triable by the Court of Session and the Magistrate has treated the same as complaint case then it was enjoined upon the Magistrate to have recorded the statements of the eyewitnesses named in the report or in the complaint. The procedure adopted by the Magistrate in taking cognizance of the case and passing impugned summoning order is illegal.
8. The sole point for consideration in this matter is whether the Magistrate was after rejecting final report submitted by the Investigating Officer and summoning the accused persons under Section 307 IPC on finding the prima facie case to have been made out under Section 307 IPC after perusal of the case diary and other material including injury report and directing the case to proceed as a complaint case, justified to proceed further without resorting to the provisions contained in Section 190 (1) (b) and 202 (2) Code of Criminal Procedure particularly when the offence punishable under Section 307 IPC was exclusively triable by the Court of Session. In other word, since the case under Section 307 IPC was exclusively triable by the Court of Session and the Magistrate directed the same to be treated as a complaint case then was it incumbent or mandatory for the Magistrate to have recorded the statements of witnesses named in the final report or in the complaint. The procedure adopted by the Magistrate in taking cognizance of the case under Section 307 IPC after perusal of the case diary and other material and summoning the accused persons (the applicants herein) to face the trial for offence punishable under Section 307 IPC by passing the impugned summoning order without recording the statements of the eyewitnesses named in the report or in the complaint was illegal.
9. The relevant part of Section 190 of Code of Criminal Procedure is reproduced hereinbelow for ready reference:
"190. Cognizance of offences by Magistrates-(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 persons other than a police officer, or upon his own knowledge, that such offence has been committed."
10. For ready reference relevant portion of Section 202 of Code of Criminal Procedure is reproduced below:
"202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall,in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other persons as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceedings:
Provided that no such direction for investigation shall be made-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1) the Magistrate may, if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath."
11. Hon'ble Supreme Court in the case of Shivjee Singh v Nagendra Tiwary & others 2010 Cri.L.J. 3827 (SC) on the point of Section 202(2) Cr.P.C. has observed as follows:
"Examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to S.202 (2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint. The use of the word 'shall' in proviso to Section 202 (2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. The word 'all' appearing in proviso to S.202 (2) is qualified by the word 'his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceedings against the accused."
12. In the case of Adalat Prasad Vs. Rooplal Jindal and others 2004 (3) CSCC page 1370 (SC), it was held that after issuance of the process by the Magistrate, the Magistrate has no power to recall the summoning order as the Magistrate has no power of review. The remedy of the aggrieved accused lies in invoking Section 482 Cr.P.C.
13. In the case of Everest Advertising (P) Ltd. Vs. State Government of NCT of Delhi and others, 2007 (2) CCSC 706 (SC), it was observed that the Magistrate after issuing process/summons does not have any jurisdiction to recall or review summoning order as the Magistrate does not have and cannot exercise any inherent jurisdiction.
14. In the case at hand, the Magistrate rejected final report submitted by the police and after perusal of the case diary and other material summoned the accused persons under Section 307 IPC and in doing so, the Magistrate was satisfied that there was sufficient ground for proceeding with the matter. The impugned order was passed by the Magistrate on proper and due application of his mind to the material before him. Application of review made by the accused persons before the Magistrate could not be legally entertained as the Magistrate had no power to review or recall the summoning order, that order was upheld by the revisional court in Criminal Revision.
15. In the case of Jagdish Ram Vs. State of Rajasthan and another 2004 (1) CCSC 450 (SC), it was observed as follows:
"It is well-settled that notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceedings and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."
16. Hon'ble Supreme Court in the case of Minu Kumari Vs. State of Bihar (2006) 4 SCC 359 observed as under:
"The Magistrate can ignore the conclusion arrived at the by I.O. and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit and exercise his power under section 190(1) (b). the Magistrate is not bound in such situation to follow the procedure laid down in sections 200 and 202 of the Code for taking cognizance of a case under section 190 (1) (a) though it is open to him to act under section 200 or section 202 also;
17. The learned counsel for the applicants has vehemently contended that the complainant Durjan Singh during pendency of the instant application died and in such case the impugned order passed by the Magistrate summoning the accused persons, applicants herein, under Section 307 IPC should be abated and cannot be allowed to continue in the trial Court because offence punishable under Section 307 IPC is exclusively triable by the Court of Session.
18. Refuting this submission, learned AGA has submitted that when the accused persons have been summoned by the Magistrate to face the trial under Section 307 IPC then the case shall have to be committed to the Court of Session for trial and the procedure provided in the Code of Criminal Procedure for Session trial shall be adopted by the Court of Session. Mere mention in the impugned order by the Magistrate that the case shall proceed as the complaint case cannot erase or nullify the procedure provided under Code of Criminal Procedure relating to offences triable by the Court of Session.
19. The Magistrate by the impugned order clearly summoned the accused persons to face trial under Section 307 IPC on finding the prima facie case from perusal of the case diary and other material on record and the Magistrate would be deemed to have taken congnizance under Section 190(1)(b) Cr.P.C. because the Magistrate rejected the final report submitted by the Investigating Officer and allowed the protest petition filed by the complainant and then passed the impugned order by which he summoned the accused persons under Section 307 IPC. It was not incumbent or mandatory for the Magistrate to record statements of the complainant under Section 200 and witnesses under Section 202 Cr.P.C. because the Magistrate was satisfied from perusal of the case diary including the statements of the witnesses recorded under Section 161 Cr.P.C., injury report and other material and found sufficient ground for proceeding.
20. Learned AGA has further submitted that in the event of death of the complainant, such offence triable by the Court of Session cannot stand abated as the prosecution is free to examine other eyewitnesses as it deems fit and proper at the trial.
21. In view of the foregoing discussions, I do not find any illegality, irregularity and legal infirmity in the impugned orders. The application under Section 482 Cr.P.C. is dismissed.
22. The interim order dated 21.12.1999 granted earlier by this Court staying the proceedings of Case No.65 of 1994, pending in the Court of Ist Judicial Magistrate, Aligarh, stands vacated.
23 The Court concerned is directed to proceed with the case on priority basis in accordance with law.
Dt. 13.12.2011 rkg