Virendra Singh vs State Of U.P. & Others
2012 Latest Caselaw 2341 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

COURT NO.52
 
CRIMINAL REVISION NO.1918 OF 2010
 
Virendra Singh ...........................................Revisionist.
 
                                 Versus
 
State of U.P. and others..........................Opposite parties.
 

 
Hon'ble Surendra Kumar, J.

1. Criminal revision is taken up in the revised list. Learned counsel for the opposite party nos.2 to 8 who are accused persons in the trial court has not appeared to argue the case.

2. Heard Sri Devendra Kumar Yadav, learned counsel for the revisionist/first informant and learned AGA for the opposite party no.1.

3. The instant revision has been filed by the revisionist-first informant against the order dated 30.3.2010 passed by the Additional Chief Judicial Magistrate, Court No.1, Aligarh, in Case No.732 of 2002 State Vs. Shanker Singh and others relating to Case Crime No.Nil of 1997, under Sections 147, 148, 149, 324, 336, 504 IPC Police Station Quarsi, District Aligarh whereby the cognizance in the aforesaid sections was taken finding prima facie evidence against them, fixing 7.5.2010 for appearance of the accused persons. It was further mentioned in the impugned order that the accused persons had neither appeared in the trial court nor sought any bail.

4. The relevant facts are that on 27.12.1996 around 8:00 a.m., the accused persons namely Shanker Singh, Vikram Singh, Ram Naresh, Nagendra, Ram Autar, Devendra and Narendra ( in all seven) formed unlawful assembly and came at the house of the complainant. At that time, three accused persons Shanker Singh, Vikram Singh and Ram Naresh each armed with Lathi and remaining four accused persons Nagendra, Ram Autar, Devendra and Nagendra each armed with Kattas and guns reached the house of the first informant with a common object to kill Gajendra Singh son of the complainant Virendra Singh. In prosecution of the common intention, they fired with their respective weapons at Gajendra Singh. Gajendra Singh was injured as a result of fire shots made by the accused persons. Thereafter, the accused persons threw brick-bats which hit Rajpal, brother of the first informant. Rajpal also sustained injuries in the said incident. Both the injured persons Gajendra Singh and Rajpal sustained injuries and they were taken for medical examination and treatment to the hospital.

5. The first information report was not lodged at Police Station. The police in collusion with the accused persons instead of lodging of the first information report of the incident, challened both the injured persons under Sections 107/116 Cr.P.C. After release of both the injured persons, in the case of apprehension of breach of peace, their medical examination was done at District Hospital Aligarh.

6. It was after the order of the court made on the application under Section 156(3) Cr.P.C., the first information report was lodged at Police Station on 7.2.1997 at 10:00 a.m. under Sections 147, 148, 149, 452, 307, 336 IPC, at Police Station Quarsi, District Aligarh. The police was bound to register the first information report in compliance of the order of the learned Magistrate but no crime number was alloted to the incident which shows hegemony or highhandedness of the police. The Investigating Officer after concluding the investigation submitted charge sheet against the accused persons (who are opposite party nos.2 to 8 herein) under Sections 147, 148, 149, 307, 336, 504 IPC on 7.8.1997. Thus, the Investigating Officer found evidence under Section 307 IPC having been made out along with other Sections.

7. It appears that on the basis of the charge sheet, the learned Magistrate passed the order of taking cognizance under the same offences in which charge sheet was submitted and proceeded further. The accused persons challenged the summoning order or the order taking cognizance in this court through Criminal Misc. Application No.1834 of 1999 and this Court vide order dated 4.6.1999 disposed of the said application directing the court below to consider objections of the accused persons and dispose of the same.

8. Thereafter the accused persons filed an application in the shape of objection in the court of the learned Magistrate on 7.5.1999 stating therein that no offence from allegation levelled against them was made out and there was no evidence on record to warrant the learned Magistrate to take cognizance on the basis of the charge sheet filed by the police, even delay in lodging of the first information report and time of the occurrence were also challenged at that time. It appears that after considering the objections of the accused, again cognizance under charge sheeted offences was taken by the learned Magistrate on 15.7.1999.

9. It is clear from the material on record that the accused persons in compliance of the order of this Court filed objection before the learned Magistrate, who after considering the same rejected and found prima facie offence under charge sheeted sections of IPC against the accused persons. It was against the order of the learned Magistrate, dated 15.7.1999, the revisionist filed Criminal Revision No.264 of 1999 in the lower revisional court and the lower revisional court vide order dated 27.3.2002 directed the concerned Magistrate to go through the material on record and decide whether offence under Section 307 IPC or 324 IPC was made out.

10. The learned Magistrate, in compliance of the order of the lower revisional court dated 27.3.2002, again went through the evidence on record filed by the police in support of the charge sheet and found vide order dated 11.2.2003 that from perusal of the evidence on record, case under Section 307 IPC was made out besides other sections against the accused persons.

11. The order passed by the Magistrate dated 11.2.2003 was again challenged by the accused persons through Criminal Revision No.145 of 2003 Shanker Singh and others Vs. State before the lower revisional court/ Court of Session and the same was decided vide judgment and order dated 31.3.2004 by the Additional Sessions Judge/FTC No.2, Aligarh whereby criminal revision was allowed and the order of the Magistrate dated 11.2.2003 was set aside and the learned Magistrate was directed by the revisional court to decide plea of the accused persons in the light of the decision in the case of Rajendra Kumar Vs. State 1980 Crl.L.J. 1084 (SC).

12. It is pertinent to note here that the lower revisional court in its judgment and order dated 31.3.2004 in paragraph no.8 thereof clearly gave a finding to the effect that the firearm injury sustained by the injured Gajendra Singh could not possibly cause death and it was doubtful whether the said injury was caused by some firearm because neither pellet inside injury was found nor there was any fracture of the nosal bone. The learned Additional Sessions Judge/ FTC No.2 has tried to decide the serious matter at the very first stage by recording the finding that in absence of fracture of any bone or absence of pellet inside injury of the injured Gajendra Singh, no offence under Section 307 IPC was prima facie made out but offence at the most was made out under Section 324 IPC. Thus what was to be done by the Magistrate while taking cognizance and at the time of committal of the case to the Court of Session has been done by the Additional Sessions Judge/ FTC No.2 against the settled principle of law. The learned Additional Sessions Judge was only required to go through material collected during investigation by the police and filed in support of the charge sheet and then to find whether offences under the charge sheeted sections of IPC were made out or not. The Additional Sessions Judge cannot be supposed to act as the trial court at preliminary stage of the matter.

13. The learned Magistrate feeling helpless and bound by the impugned judgment and order dated 31.3.2004 passed by the Additional Sessions Judge in the aforesaid revision reconsidered the matter by perusing the evidence collected during investigation and filed in support of the charge sheet, case diary, injury report, x-ray report and supplementary report etc. The learned Magistrate in compliance of this order of the lower revisional court keeping in mind the finding recorded by lower the revisional court that offence under Section 324 IPC was made out, summoned the accused persons vide impugned order dated 30.3.2010 under Sections 147, 148, 149, 324, 504, 336 IPC excluding offence under Section 307 IPC. The handicap of the Magistrate in passing the impugned order dated 30.3.2010 is quite evident from perusal of the impugned order itself.

14. It is also necessary to give details of the medical evidence available in this case for just decision of this revision. According to the injury report of Gajendra Singh aged about 20 years, dated 27.12.1996, injury no.1 was lacerated wound .25 cm x .25cm x depth under observation on right side of root of nose. Advised x-ray and injury no.2 was abrasion 2 cm x ½ cm on the right great toe. Injury no.1 was kept under observation. Injury no.2 was simple in nature and caused by blunt object. Duration of the injuries was ½ day old.

15. As per x-ray report of the injured Gajendra Singh dated 28.12.1996, no fracture of nosal bone was found. One small radio opaque shadow of metallic density just below skin in subcutaneous tissue as marked seen. The doctor on the basis of x-ray report prepared supplementary report dated 31.12.1996 and termed injury no.1 as grievous in nature and caused by firearm.

16. The injury report of Rajpal @ Yad Ram aged 65 years dated 27.12.1996 reflects one lacerated wound 1.5 cm x ½ cm x muscle deep on the front of left thigh middle. It was simple with duration of ½ day old.

17. The injury sustained by injured Gajendra Singh in the incident as per medical evidence was caused by firearm and was grievous in nature. At this stage, there is nothing on record against this medical evidence.

18. At the stage of taking cognizance or summoning on the basis of charge sheet, medical evidence is important and remarkable which should be considered by the Magistrate concerned and the same cannot be lightly ignored or discarded. The seat of injury no.1 of the injured Gajendra Singh is vital part of the body. The lower revisional court has exceeded its jurisdiction in analyzing the evidence meticulously. At the stage of the summoning or taking cognizance, the court is required to see whether from perusal of the material on record prima face case under the charge sheeted sections is made out or not. No deep analysis or meticulous examination at the stage of cognizance or passing the summoning order is permissible under the law.

19. The lower revisional court is not supposed to go into deep analysis of the facts and give a finding on facts and then direct the learned Magistrate to take cognizance or pass summoning order in such a way which is strictly prohibited in law and such practices can never be encouraged.

20. Hon'ble Apex Court in the case of Jagdish Ram Vs. State of Rajasthan and another 2004 (49) ACC 9 (SC), has observed that the taking of cognizance of the offence is an area exclusively within the domain of the Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. At that stage the Magistrate is not required to record reasons.

21. Hon'ble Apex Court in the case of S.K. Sinha, Chief Enforcement Officer Vs. Videocan International Ltd. 2008 (61) ACC 371 (SC), has further observed that "cognizance" has no esoteric of mystic significance in criminal law. It merely means "becomes aware of" and when used with reference to a Court or a Judge, it connotes to take notice of judicially. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence, therefore, taking of cognizance is sine quo non or conditioned precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether the Magistrate has taken cognizance or not depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.

22. Therefore, the Apex Court propounded the principle that as and when the Magistrate takes judicial notice of an offence with a view to proceed with the matter and applies his mind to the facts of the case and finds sufficient materials to proceed with the case and directs for issue of process to the accused on the basis of the police report, is said to have taken cognizance of the offence.

23. Hon'ble Supreme Court in the case of Hareram Satpathy Vs. Tikaram Agarwala, 1978 (15) ACC 356 (SC), has further observed that the Magistrate is restricted to find out whether there is a prima facie case or not for proceeding against the accused and cannot enter into a detailed discussion of the merits or demerits of the case.

24. This Court in the case of Akash Garg Vs. State of U.P. and others 2012 (76) ACC 103 has held that it is also well settled that at the stage of taking cognizance of an offence, the Magistrate is not required to examine thoroughly the merits and demerits of the case and to record a final verdict. At that stage he is not required to record even reasons, as expression of reasons in support of the cognizance may result in causing prejudice to the rights of the parties (complainant or accused) and may also in due course result in prejudicing the trial. However, the order of the Magistrate must reflect that he has applied his mind to the facts of the case. In other words at the stage of taking cognizance what is required from the Magistrate is to apply his him to the facts of the case including the evidence collected during the investigation and to see whether or not there is sufficient ground (prima facie case) to proceed with the case. The law does not require the Magistrate to record reasons for taking cognizance of an offence.

25. Hon'ble Supreme Court in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others AIR 1976 SC 1947, has further observed that it is well settled by a long catena of decisions of this court that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or de-merits of the case nor can the High Court go into this matter in its revisionsal jurisdiction which is a very limited one.

26. Hon'ble Supreme Court in the case of Rajesh Talwar Vs. C.B.I. (DELHI) and another 2012 (76) ACC 598 (SC) has recently observed that at the stage of taking cognizance under Criminal Procedure Code, 1973, the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the Investigating Officer and he is competent to exercise his discretion irrespective of the views expressed by the Police in its report and may prima facie find out whether an offence has been made out or not.

27. It has been further observed in the case of Rajesh Talwar (supra) that the taking of cognizance means the point in time when a Court or a Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence which appears to have been committed.

28. At the stage of taking of cognizance of offence, the Court has only to see whether prime facie there are reasons for issuing the process and whether the ingredients of the offence are there on record.

29. The correctness of the order whereby cognizance of the offence has been taken by the Magistrate, unless it is perverse or based on no material, should be sparingly interfered with. In the instant case, anyone reading the order of the Magistrate taking cognizance, will come to the conclusion that there has been due application of mind by the Magistrate and it is a well reasoned order.

30. Hon'ble Supreme Court in the case of Rajesh Talwar (supra) has further observed that we feel constrained to observe that at this stage, this Court should exercise utmost restrain and caution before interfering with an order of taking cognizance by the Magistrate, otherwise the holding of a trial will be stalled. The superior Courts should maintain this restrain to uphold the rule of law and sustain the faith of the common man in the administration of justice.

31. In the result, the revision has merits and is liable to be allowed. The impugned order dated 30.3.2010 passed by the learned Additional Chief Judicial Magistrate, Court No.1, Aligarh is set aside. The impugned judgment and order dated 31.3.2004 passed by the lower revisional court/learned Additional Sessions Judge, FTC No.2, Aligarh, is also set aside and accordingly, the instant revision is allowed.

32. In view of the above, the learned Magistrate is directed to go through the material collected by the Investigating Officer during investigation and other material filed in support of the charge sheet, case diary, medical evidence and then take independent decision under which sections of IPC, offences prima facie appear to be made out.

33. Since it is case of the year 1997, the learned Magistrate is directed to proceed with the matter and pass appropriate order in accordance with law. If the offence triable by the Court of Session is found then learned Magistrate shall commit the case without any further delay to the Court of Session after securing attendance of the accused persons and if any of the accused does not cooperate, the learned Magistrate is free to take coercive measure provided under Cr.P.C.

Dt. 30.5.2012.

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