Allahabad High Court

Amar Bahadur And Another vs State Of U.P.And Another on 11 October, 2013

Bench: Arvind Kumar (Ii)




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 12						Reserved
 

 
Case :- MISC. SINGLE No. - 6599 of 2013
 

 
Petitioner :- Amar Bahadur And Another
 
Respondent :- State Of U.P.And Another
 
Counsel for Petitioner :- Dr.V.K.Singh,Brijendra Mohan Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Arvind Kumar Tripathi (II),J.

1. The instant writ petition has been filed by the petitioners for issuing writ or direction in nature of certiorari for quashing the order dated 4.6.2013 passed Additional District and Sessions Judge, Court No.1, Faizabad in Criminal Revision No.293 of 2011 and order dated 20.7.2011 passed by Chief Judicial Magistrate, Faizabad allowing the final report filed by investigation officer in Case Crime No.343 of 2009 under Section 147, 148,304, 323, 504, 506 IPC Police Station -Khandas Milkipur, Faizabad.

2. Brief facts of the case are that Veer Pratap Singh son of Suresh Singh has given written FIR to police station incharge P.S. Khandas Milkipur, Faizabad that his father Suresh Singh was assaulted by Amar Bahadur Singh, Ram Adhin, Ram Sundar, Surendra Pratap Singh, Ram Jiyawan and Vipin Kumar Singh were assaulted by kicks and fists and lathi danda on 25.7.2009 at about 6 P.M. Ram Sundar was cutting green trees situated in Khalihan. His father has gone to stop him being Member of Gaon Panchayat. On this all the four persons assaulted him. On alarm Chhaggu and Chhote Lal and 4-5 persons came there and saw the occurrence. Suresh Kumar Singh was being taken by informant and others to police station, then they all obstructed them told them if they will go to police station they will be killed. On 4.8.2009 at about 4.00 pm. when his father was going to attend call of nature, above accused persons caught hold of him and took him to the house of Amar Bahadur Singh and again assaulted him. On alarm Chandra Bhan and Sumitra reached there and brought him back to the house. In the meantime he had succumbed to the injuries. On the basis of this information a case under Section 147, 148, 304,323,504, 506 IPC Police Station -Khandas Milkipur, Faizabad was registered. Previously, a case was investigated by police but later on investigation was conducted by C.B. CID. The investigating agency submitted final report. Chief Judicial Magistrate summoned the informant who appeared and filed a protest petition. Chief Judicial Magistrate after going through the protest petition and going through the case diary, summoned the accused persons under Sections 147, 304, 323, 504, 506 IPC vide order dated 20.7.2011. Feeling aggrieved Criminal Revision No.283/11 was filed which too was dismissed vide order dated 4.6.2013. Feeling aggrieved this writ petition has been filed.

3. Heard Sri Dr. V.K. Singh, learned counsel for petitioner, learned AGA for the State and perused the record.

4. It was argued that deceased Suresh Singh was mentally disturbed due to being highly alcoholic since long Suresh Singh was subjected to cruelty by his own family members. Petitioner nos.1 and 2 have enmity since long as the brother of deceased and his wife contested election of Pradhan but both faced humiliating defeat in the year 1995 and 200 at hands of brother of petitioner no.1. In the year 2007 at about four bighas 16 Biswa land of informant was auctioned due to non-payment of bank loan and mother of petitioner no.1 was the highest bidder. No specific role has been assigned in the FIR and the statement of informant under Section 161 Cr.P.C. does not reveal any convincing allegation in the said FIR alleged by informant. Informant was not present there at the time of incidence and as such the entire story was doubtful. On the said date of incident he was present in the Lucknow High Court for pairvi of Writ Petition No.385(Consolidation) of 2009. FIR lodged against petitioner no.2 is due to previous enmity. The Chief Judicial Magistrate has not rejected the final report and without rejecting the final report summoned them.

5. Learned counsel for petitioner relied upon (i) Sampt Singh Vs. State of Haryana, 1992(3) SCALE 565,(ii) Pakhandu Vs. State 2002 (1) J.I.C. 104 (All), (iii) Kallu Vs. State 2010 (69) ACC 780, (iv) Vimlesh Vs. State of U.P. Application under Section 482 No.5023/2010, decided on 16.3.2010, (v) Harkesh Vs. State of U.P. 2001 (43) ACC 720 and (vi) Anil Kumar Chauhan Vs. State of U.P. 2004(49) ACC 345.

6. Learned AGA submitted that since the Magistrate has after going through the evidence in case diary has come to the conclusion that there is sufficient evidence to summon the accused persons hence there is no illegality in the order. It was further submitted that argument advanced by learned counsel for petitioner may be a ground for defence for which he will be given liberty at the appropriate stage. It was also submitted that summoning of accused persons implies rejection of final report.

7. Considered the rival submission of the parties.

8. The Chief Judicial Magistrate has after going through the case diary and after considering the statement of Chhangu and Chhote Lal and informant himself, his uncle Chandra Bhan, Grand Mother Sumitra and mother of informant Bhanamati and after going through the postmortem, has come to the conclusion that there is sufficient ground to summon the accused persons for facing trial.

9. A perusal of the Chief Judicial Magistrate's order reveals that final report has been submitted on the basis of affidavits filed by several person in defence. Learned Court below has come to the conclusion that even investigating officer has found that deceased died due to injuries received.

10. Now, it is only to be seen that who has caused the injuries. The I.O.should have left the matter to the trial court to decide after going through the evidence adduced by both the parties. The investigating officer has acceded his jurisdiction by relying upon affidavits of some persons. An affidavit is no evidence in the eyes of law and to disbelieve the statement of eye witnesses on the strength of affidavits is erroneous on the part of the investigating officer.

11. In the case of Sampat Singh and Others Vs. State of Haryana and Others 1992 (3) SC ALE 565.

"Needless to say, it is not for a Court to keep track of an investigation and watch its day to day progress but, of course, when an investigation culminates into a final report as contemplated under Section 173 of Cr.P.C., then the competent Court enjoins a duty within its authority sanctioned by law to scrupulously scrutinize the final report and the accompaniments by applying its judicial mind and take a decision either to accept or reject the final report. In the present case, that stage has come on the submission of the final report, namely the cancellation report, by the Investigating Officer."

12. In the case of Pakhandu & Others Vs. State of U.P. and Another 2002 (1) JIC 104 Allahabad, this court has held that:

"16. Where the Magistrate decides to take cognizance of the case under Section 190(1))(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code and consequently the proviso to Section 202(2), Cr.P.C. will have no application. It would however be relevant to mention that for forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under Section 200.

17. A plain reading of Sub-section (2) of Section 202 with the proviso attached thereto makes it clear that question of applying the proviso will arise only in cases where the Magistrate before taking cognizance of the case opts to hold the inquiry. This matter was thoroughly examined by the Apex Court in the latest decision in Rosy v. State of Kerala J.T. 2000(1) SC 84; 2000(1) JIC 815 (S.C).

It was observed as under in paragraph 37 :

"Therefore, the question of complying with the proviso to Sub-section (2) of Section 202 would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry and secondly in such inquiry by him, if he decides to take evidence of witnesses on oath. But the object and purpose of holding inquiry or investigation under Section 202 is to find out whether there is sufficient ground for proceeding against the accused or not and that holding of inquiry or investigation is not an indispensable course before issue of process against the accused or dismissal of the complaint. It is an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath."

It was further observed as under in paragraph 40 of the report :

"In this view of the matter it is apparent that the High Court erred in holding that there was breach of mandatory provisions of the proviso to Section 202(2) of the Code and the order of committal is vitiated and, therefore, requires to be set-aside. The High Court failed to consider proviso to Section 200, particularly proviso (a) to the said section and also the fact that inquiry under Section 202 is discretionary for deciding whether to issue process (under Section 204) or to dismiss the complaint (under Section 203). Under Section 200, on receipt of the complaint, Magistrate can take cognizance and issue process to the accused. If the case is exclusively triable by the Sessions Court, he is required to commit the case to the Court of Sessions."

18. From the above it is absolutely clear that proviso to Sub-section (2) of Section 202 of the Code will apply only to a case where the Magistrate has taken cognizance under Section 190(1) (a) and has opted to hold inquiry under Section 202 after examining the complainant and witnesses present, if any, under Section 200, Cr.P.C.

19. From the facts stated in the report of Mohabbat Ali's case it appears that the learned Magistrate had not adopted the procedure laid down for complaint cases after receiving the final report and had issued process. The Magistrate thus appears to have taken cognizance under Section 190(1)(b) of the Cr.P.C. If the cognizance was taken under said provision there was no question of applicability of relevant provisions applicable to complaint cases including proviso to Section 202(2), Cr.P.C. The Magistrate was thus not bound to call upon the complainant to produce all his witnesses and examine them on oath. Even otherwise also in view of Apex Court decision in Rosy and another (supra) no room for doubt is left to hold that the question of complying with the proviso to Sub-section (2) of Section 202 arises only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry under Section 202 and secondly in such inquiry by him, if he decides to take evidence of witnesses on oath. The inquiry under Section 202 is discretionary for deciding whether to issue process under Section 204 or to dismiss the complaint under Section 203, Cr.P.C."

13. In the case of Kallu and Others (Supra) this Court has held in paras 10 and 11 as under :

"10.As would appear from the observations made by this Court in Mohammad Yusuf case (supra), cognizance under section 190 (1)(b), Cr.P.C. cannot be taken on the basis of the affidavits filed in support of the protest petition against final report and if material in the case diary is not sufficient to take cognizance, then the procedure laid down under Chapter XV Cr. P.C. should be followed by the Magistrate after treating the protest petition as complaint, as held by Division Bench of this Court in Pakhandu case (supra). Therefore, in present case also, if the material in the case diary was not sufficient for summoning the accused persons to face the trial, then the protest petition filed by the complainant against the final report ought to have been registered as complaint and after following the procedure laid down in sections 200 and 202, Cr.P.C. it would have decided whether the complaint should be dismissed or process should be issued. If after taking evidence under Sections 200 and 202, Cr.P.C., the Magistrate decides to take cognizance against the accused persons, final report has to be rejected, but in any case, cognizance cannot be taken merely on the basis of affidavits or other material filed by the complainant in support of the protest petition against final report without following the procedure laid down under Chapter XV Cr.P.C., if the material in the case diary is not sufficient to take cognizance.

11 For the reasons stated hereinabove, the impugned summoning order cannot be sustained, as cognizance under Section 190(1)(b), Cr.P.C. has been taken by the learned Magistrate after rejecting the final report on the basis of the injury report and affidavits filed by the complainant/O.P. No.2 in support of the protest petition against final report without following the procedure laid down under Chapter XV Cr.P.C. Therefore, it would be in the interest of justice to send the case back to the Court below for passing fresh order on the protest petition filed by the complaint against the final report treating the same as complaint and following the procedure laid down in Chapter XV Cr.P.C.

14. In the case of Vimlesh (supra) has relied upon the decision of Pakhandu and other Vs. State of U.P. In the case of Harikesh Vs. State of U.P. This court has held paras 9 and 10 as under:

"9. Upon receiving final report the following four courses are open to the Magistrate and he may adopt any one of them as the facts and circumstances of the case may requires;

(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;

(ii) He may take cognizance under Sections 190(1)(b) and issue process straightway 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 dorpping 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.

This position of law is now well settled by various pronouncements of the Apex Court, such as (1) Abhinanadan Jha V. Dines Misra, (2) H.S. Bains V. State, (3) Tularam Vs. Kishan Singh, and (4) M/s India Carat Pvt. Ltd. Vs. State of Karnataka.

(10) In Abhinandan Jha V. Dinesh Misra (supra) the question arose whether a Magistrate to whom report under Section 173 (2) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the police. The Apex Court held that the Magistrate has no jurisdiction to direct the police to submit a charge-sheet but it is open to the Magistrate to agree or disagree with the police report. If he agrees with the report that there is no case made out for issuing process to the accused, he may accept report and close the proceedings. But if he comes to the conclusion that further investigation in necessary, he may make an order to that effect under Section 156(3) and if ultimately the Magistrate is of the opinion that the facts set out in the police report constitute an offence, he can take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. However in the said decision a typing error occurred in as much as the reference to Section 190 (1)(c) was a mistake for Section 190 (1)(b) which was later on pointed out in H.S. Bains case (supra)."

15. In the case of Anil Kumar Chauhan (supra) this Court has held in para 9 as under:

"(9) After receipt of the final report and filing of the protest petition, learned Judge was required to treat the protest petition as a complaint and record the statement of the informant under Section 200 and his witnesses under Section 202 Cr.P.C. Thereafter, he was required to decide to issue process against the accused provided he found sufficient grounds. In the instant case, the informant filed protest petition alongwith his own affidavit and an affidavit of his brother. His statement was not recorded under Section 200 Cr.P.C. and no enquiry was conducted under Section 202 Cr.P.C. Consequently, I hold that the learned Judge committed illegality in not following the correct procedure after receipt of the final report and he was not justified in summoning the accused to face trial. Therefore, the order under revision is liable to be set aside."

16. A perusal of the above decisions reveals that when a final report is submitted, following four courses are open to the Magistrate and he may adopt any one of them as the facts and circumstances of the case may requires;

(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;

(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.

17. In the instant case the Magistrate has taken cognizance under Section 190(1)(b) and issued process straightway to the accused without being bound by the conclusions of investigating agency.

18. The post-mortem injury clearly reveals that death was due to shock and haemorage, as a result of injury no.1. A perusal of report reveals that there are eight antemortem injuries on the body of the deceased and injury no.1 is "contusion in area of 12 cm x 12 cm on right side of abdomen and lower end of anterior aspects of right chest, 4 cm below the right nipple".

19. The revisional court has also considered the entire evidence and the order of Chief Judicial Magistrate, Faizabad and dismissed the revision. (From the facts on record, I do not fine any illegality or irregularity in the impugned orders. Chief Judicial Magistrate has every right to summon the accused persons after going through the protest petition and evidence case diary).

20. In the case of Pakhandu Vs. State (supra) the division bench has held that In view of what we have stated above the question referred to by the learned single Judge is answered as follows :-

"Where cognizance has been taken under Section 190(1)(b), Cr.P.C. only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to Sub-section (2) of Section 202, Cr.P.C. shall have no application. The contrary view expressed in Mohabbat Ali's case is not a correct proposition of law."

21. It is noteworthy that along with protest petition no external evidence was filed and was considered, in view above, the writ petition is liable to be dismissed and is hereby dismissed.

22. However on request of learned counsel for petitioners if the petitioners surrendered before the court below within thirty days from today their bail application shall be considered as expeditiously as possible in the light of Amrawati and another Vs. State of U.P. reported in 2004(57)ALR 390, Sheo Raj Singh Vs. Chuttan and Pradeep Tyagi 2009 (65)ACC 443 and by the Supreme Court in Lal Kamlendra Pratap Singh Vs. State of U.P. and others 2009(2), expeditiously as possible.

Order Date :- 11.10.2013

Subodh/-