Vikrant And Others vs State Of U.P.And Another
2011 Latest Caselaw 113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 49
 

 
Case :- APPLICATION U/S 482 No. - 3665 of 2011
 

 
Petitioner :- Vikrant And Others
 
Respondent :- State Of U.P.And Another
 
Petitioner Counsel :- Arvind Srivastava
 
Respondent Counsel :- Govt.Advocate
 

 
Hon'ble Shri Kant Tripathi,J.

1. Heard learned counsel for the applicants and the learned AGA for the respondent no. 1 and also perused the record.

2. It appears that in the case crime no. 130 of 2010 under section 304-B IPC, police station Mansoorpur, district Muzaffarnagar, the investigating officer submitted a final report against which the respondent no. 2 filed a protest petition alongwith her affidavit and also the affidavits of the witnesses Smt. Rekha and Smt. Bedi. The learned Additional Chief Judicial Magistrate, Court No. 1, Muzaffarnagar considered the final report as well as the protest petition together and passed the impugned order dated 25.11.2010, whereby the learned Magistrate accepted the protest petition and rejected the final report and took cognizance of the offence under section 304-B IPC. Learned Magistrate further directed issue of processes to the applicants.

3. The relevant facts of the case are that the deceased Smt. Rekha was the wife of the applicant no.1 Vikrant. She sustained serious burn injuries in the house of the applicants on 10.3.2010 at about 6.00 AM and died on 2.4.2010 in the Medical College, Meerut. Initially she was taken to Jeo Nath Hospital, Dwarikapuri, Muzaffarnagar for treatment but was referred to the Medical College, Meerut on 27.3.2010. The cause of death was Septicaemia on account of burn injuries. It is also alleged that a dying declaration of the deceased was recorded in the Jeo Nath Hospital, Muzaffarnagar by Sub Divisional Magistrate, Sadar Sri Narendra Singh. In that statement, the deceased stated that she sustained burn injuries accidentally. The investigating officer examined so many witnesses in support of the story that the death of the deceased was accidental and not homicidal. The complainant and her witnesses were also interrogated under section 161 of the Code, who supported the FIR version. The investigating officer keeping in view the statements of the witnesses submitted a final report. The learned Additional Chief Judicial Magistrate found adequate materials against the applicants, therefore, he rejected the final report and summoned the accused.

4. The learned counsel for the applicants submitted that it was obligatory on the part of the learned Additional Chief Judicial Magistrate to record the statements of the respondent no.2 under section 200 of the Code and also to hold an inquiry under section 202 of the Code before passing the summoning order, therefore, the summoning order was bad in law. The learned counsel further submitted that the Magistrate has ignored the dying declaration and the statements of the witnesses, who were neighbours of the applicants while considering the final report.

5. In my opinion, the learned Additional Chief Judicial Magistrate was not required to record a judgment at the stage of taking cognizance of the offence. He was required only to peruse the materials collected during the investigation to ascertain as to whether any prima case for summoning the applicants had been made out or not. The learned Additional Chief Judicial Magistrate neither treated the protest petition as complaint nor decided to proceed therewith as a complaint case, therefore, he was not required to adopt the procedure prescribed in chapter XV of the Code. The learned Additional Chief Judicial Magistrate took cognizance of the offence under section 190(1)(b) of the Code on the police report and as such there was no question of recording the statements of the respondent no.2 and her witnesses before summoning the applicants. What was required from the learned Additional Chief Judicial Magistrate was to peruse the materials collected during the investigation. If any prima facie case was made out from such materials, it was open to the Magistrate to reject the final report and take cognizance of the offence.

6. In regard to the police report, whether it is in the form of charge sheet or the final report. The power of the Magistrate is well settled. The Magistrate is not bound by the conclusion of the police. Whenever any police report is submitted, the Magistrate may agree with the report and accept the same. He may, in a given situation, disagree with the conclusion of the police and arrive at his own conclusion. In the matter of final report too, the Magistrate may disagree with the report and take cognizance of the offence and summon the accused, if he, after applying his mind to the facts emerging from the investigation, is of the view that there is sufficient material to summon the accused and proceed with the case. In other words, the Magistrate is competent to reject the final report and take cognizance of the offence if a prima facie case is made out against the accused from the materials collected during the investigation. In appropriate cases, the Magistrate, after disagreeing with the report, may direct for further investigation. These principles have been settled by the Apex Court in several cases and some of them are, Minu Kumari vs. State of Bihar [(2006) 4 SCC 359], Popular Muthiah vs. State [(2006) 7 SCC 296], Abhi Nandan Jha vs. Dinesh Mishra, [AIR 1968 SC 117 ]and Gangadhar Janardan Mhatre vs. State of Maharashtra [(2004) 7 SCC 768].

7. The law in regard to the protest petition is also well settled. If any protest petition is filed against the final report, the Magistrate may proceed to examine the matter on the basis of materials collected during the investigation and to see whether or not any case for taking cognizance of the offence is made out from the materials collected during the investigation. If a prima facie case is made out, the Magistrate may take cognizance of the offence under section 190 (1) (b) of Cr.P.C. and reject the final report. But if such materials do not make out any case for taking cognizance of the offence, the Magistrate may, in that situation, treat the protest petition as complaint. If any protest petition is treated as complaint, it should be dealt with in accordance with Chapter XV of CrPC.

8. The learned counsel for the applicants lastly submitted that the Magistrate has taken into account the affidavits filed by the respondent no.2 and her witnesses, therefore, he acted beyond his jurisdiction in taking into account the said extraneous materials and as such the summoning order is bad.

9. In my opinion, the learned Additional Chief Judicial Magistrate has not taken cognizance on the basis of the affidavits. He has merely referred to the affidavits in his order while referring to the relevant facts of the case and has very categorically arrived at the conclusion that the respondent no.2 and her witnesses have supported the F.I.R. version in their statements made under section 161 of the Code. In my opinion, the learned Magistrate considered the entire materials collected during the investigation including the dying declaration and arrived at the conclusion that a prima facie case was made out against the accused. In this view of the matter, the High Court, in exercise of the inherent jurisdiction under section 482 of the Code, can not substitute its own finding of fact. In my opinion, the learned Magistrate does not appear to have taken into account any extraneous material while passing the impugned order.

10. The petition has, therefore, no merit and is accordingly dismissed.

Order Date :- 8.3.2011

RKSh