Narendra Singh vs State Of U.P. & Another
2012 Latest Caselaw 5289 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved.
 
Court No. - 41
 

 
Case :- APPLICATION U/S 482 No. - 1772 of 2007
 
Petitioner :- Narendra Singh
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Amit Daga
 
Respondent Counsel :- Govt. Advocate,Arun Kr. Singh (I)
 

 
Hon'ble Sunil Hali,J.

By means of this application, under Section 482 Cr.P.C. applicant has prayed for quashing of the criminal proceedings of Criminal Case No. 4635/9 of 2006 (Ravish Kumar Vs Narendra Singh) under Sections 504 and 506 IPC, P.S. Kotwali, District Muzaffar Nagar pending in the court of Chief Judicial Magistrate, Muzaffar Nagar.

Facts giving rise to present petition are that a complaint was filed before the Magistrate purported to be under Section 156(3) Cr.P.C. against the applicant, whereupon, learned Magistrate called for a report from the concerned police station and considering the report of the police ordered for registration and investigation of the case vide order dated 18.1.2005 and in pursuance thereof a Criminal Case being N.C.R. No. 12 of 2005, under Sections 504, 506 IPC was registered against the applicant. After recording the statement of the witnesses as well as collecting the entire evidence, Investigating Officer submitted final report to the Magistrate. Aggrieved with the aforesaid final report, opposite party no. 2 filed a protest petition in the court of Chief Judicial Magistrate and the learned Magistrate ignoring the conclusion of the investigation undertaken by the Investigating Officer proceeded to summon the applicant for the offences under Sections 504, 506 IPC vide order date 18.4.2006. It is this order which has been questioned before this court in the present application.

Contention raised by learned counsel for the applicant is that after investigation in the matter was conducted by the Investigating Officer, who has recorded the statement of the witnesses and concluded that the present prosecution against the applicant was malicious and the very foundation of the factual ingredients constituting substantive offence were missing, learned Magistrate issued process against the applicant by relying upon the statement of the complainant and their witnesses ignoring the statement of other witnesses who had clearly stated that no offence was committed by the applicant before Investigating Officer. Assuming that there was material to proceed the Magistrate was required to treat the N.C.R. as complaint and the Investigating Officer of the case as complainant in view of section 2(d) of the Cr.P.C. before issuing process.

It is further stated that the present complaint has been filed against the applicant for achieving the ulterior motive of harassing and putting pressure on the applicant who has recorded adverse entries against the father of the opposite party no. 2.

It is contended by learned counsel for the applicant that father of the opposite party no. 2 was working as Prashasanik Officer in sadar Tehsil District Muzaffar Nagar where the applicant was posted as Tehsildar. During his tenure in the said office it was found that the father of the opposite party no. 2 was negligent in his duties and invariably remained absent as a result of which bad entry was also made in the service book by the applicant. As a result of which he became annoyed with the applicant and in collusion with his son filed a false and frivolous report with intention to harass the applicant. It is pertinent to mention here that a report was called from the police and without perusing the report, direction was issued to register a criminal case by directing further investigation in the matter. This order was passed on 18.1.2005 and in pursuance to that a Criminal Case being N.C.R. No. 12 of 2005 was registered against the applicant.

Heard learned counsel for the parties and perused the material on record.

Two fold submissions have been made by the applicant that (i) the Magistrate has, without considering the report of the Investigating Officer, allowed the protest petition filed by opposite party no. 2 by issuing process under Sections 504, 506 IPC; (ii) that the recourse available to the Magistrate was to treat the N.C.R. as complaint and the Investigating Officer as Complainant, which course has not been complied with and (iii) that the present proceeding has been instituted with malafide intention with an intent to harass the applicant.

So far as the first ground is concerned, it is trite law that the Magistrate is not bound to accept the conclusion of the Investigating Officer. The Division Bench of this Court in the case of Pakhando and others Vs. State of U.P. and another (2001(43) ACC 1096) had the occasion to consider the matter regarding the procedure to be adopted by the Magistrate/Court on submission of the final report by the police. Having taken various authorities into consideration, the following observations have been made by the Division Bench in para 15 of the judgement at page 1100 of the report:-

"From the aforesaid decisions, it is thus clear that where the Magistrate receives final report, the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:-

(I). He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant' or

(II) He may take cognizance under Section 190(1)(b) and issue process straight way to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

(III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

Magistrate has taken recourse to Clause II of the option (supra). He has taken cognizance without being bound by the conclusions of the investigating agency, after being satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed. In the present case, Magistrate has relied upon the statement of the complainant as also some of the witnesses before proceedings in the matter. Magistrate is not bound to take into consideration the report submitted by the Investigating Officer to the effect that no case is made out against the accused. Magistrate can take into account the statement of the witnesses examined by the police during investigation and take cognizance of the offence complained of. He may take into consideration the witnesses examined during course of investigation and also those who have been examined in support of the complaint. He can independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit. The Magistrate is also not bound to follow the procedure laid down in Section 200 and 202 Cr.P.C. for taking cognizance of the case under Section 190(1)(b) Cr.P.C. It is only after he takes cognizance and decided to issue process has to follow the procedure laid down under Section 200/202 Cr.P.C. At the time of taking cognizance he is not bound to follow the procedure laid down under Section 200/202 Cr.P.C.

Hon'ble Apex Court in the case of M/s India Carat Private Limited Vs State of Karnataka and another reported in AIR 1989 SC 885 has held in paragraph no. 16 as under:

"The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer; and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also. The High Court was, there- fore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him."

The observations made in the decision in M/s. India Carat Pvt. Ltd. (Supra) which have been reproduced above in this judgment, leave no room for doubt that the Magistrate is not bound with the conclusions arrived at by the investigating agency and it is open for him to apply his mind independently to the facts emerging from the investigation and take cognizance of the case if he deems fit, in exercise of his powers under S.190(1)(b). The Magistrate in such a situation is not bound to follow the procedure laid down in Ss.200 and 202 of the Code for taking cognizance under S.190(1)(a), though alternatively it is open to him to act under S.200 or S.202 also.

The position is thus clear that when Magistrate receives police report under S.173(2), he is entitled to take cognizance of an offence even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during investigation and other material collected during investigation and form his own opinion independently without being bound by the conclusions arrived at by the investigating agency and take cognizance under S.190(1)(b) of the Code.

The second ground raised by the learned counsel for the applicant that the Magistrate was bound to treat the NCR as a complaint and the police Officer as complainant as provided under Section 2(d) of the Code. Argument is per-se misconceived. It is only in those cases where the N.C.R. Is submitted by the police and the Magistrate accepts the conclusion of the Investigating Officer that he is required to treat that as complaint and issue process. In the present case, Magistrate has rejected the conclusion of the Investigating Officer and proceed to take cognizance by treating the protest petition as complaint after examining the complainant and his witnesses issued process. Argument as such is misplaced.

The last ground raised by the learned counsel for the applicant is that the present complaint is actuated with malafide. Merely because some bad entries have been recorded by the Tehsildar (the applicant) that by itself would not be a ground to reject the complaint filed by the opposite party no. 2.

Seeking quashment of the proceedings in exercise of the powers possessed by the High Court under section 482 of the Code being very wide but with certain limitation as the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court's failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

Hon'ble Apex Court in catena of decisions had occasion to examine the legal position in a large number of cases. In R.P. Kapur v. State of Punjab AIR 1960 SC 866, Hon'ble Apex court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings; they are as under:-

(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

Applying the aforesaid principles in the present case, prima facie the facts constitute commission of cognizable offence against the applicants.

Applying the aforesaid principles in the present case, prima facie the facts alleged in the complaint constitute commission of cognizable offence against the applicant.

In view of above, I find no force in this application. It is accordingly, dismissed. Interim order stands discharged. Trial Court is directed to proceed in the matter in accordance with law.

Order Date :- 19.10.2012.

RKS/