Naresh Pal Singh vs State Of U.P. And Others
2013 Latest Caselaw 6565 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Case :- CRIMINAL REVISION No. - 5136 of 2011
 

 
Revisionist :- Naresh Pal Singh
 
Opposite Party :- State Of U.P. And Others
 
Counsel for Revisionist :- M.P.S. Chauhan
 
Counsel for Opposite Party :- Govt. Advocate, J.P.S. Jadaun
 

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

1. Heard Shri M.P.S. Chauhan, learned counsel for the revisionist; learned AGA for the State respondent, and Shri J.P.S. Jadaun, learned counsel for the private respondents.

2. The instant revision has been preferred against the judgment and order dated 9.9.2011 passed by the Additional Sessions Judge, Court No.5, Aligarh in Criminal Revision No.125 of 2011. Vide impugned order, the revisional court has set aside the order passed by the learned Additional Chief Judicial Magistrate, Court No.5, Aligarh and quashed the order dated 29.1.2011, and remanded the case to decide afresh the issue of cognizance after hearing the complainant.

3. Previously, this criminal revision was decided by this Court vide order dated 1.12.2011. Feeling aggrieved, Mahipal Singh and other approached the Apex Court, which remitted the matter to this Court to decide afresh after hearng all the parties. In view of the above order of the Apex Court, both the parties have been heard.

4. The facts giving rise to the instant revision are that the complainant/revisionist had lodged a first information report against the opposite parties 2 to 6 which was registered as Case Crime No. 72 of 2010, under Sections 147, 148, 149, 452, 307, 324, 504 and 506 I.P.C. The Investigating Officer after investigation submitted final report hence the protest petition was filed. In support of the protest petition the revisionist has filed his affidavit.

5. The prosecution case in brief is that on 2.3.2010 at about 5 P.M. the accused/respondents entered into the house of the complainant using abusive language and threatened him to withdraw the case. One accused Chandra Shekhar had also fired upon him at the instance of accused Mahipal but luckily no injury was caused by firearm. Thereafter he was brutally assaulted with lathi-danda and knife. During investigation final report was submitted. The learned Magistrate after going through the protest petition and the statement of the witnesses recorded by Investigating Officer came to the conclusion that prima facie offence is made out against the accused/respondents, hence the protest petition was accepted and the final report submitted by the police was rejected. The cognizance was taken against the accused persons for the offences as stated above by order dated 29.1.2011. The accused/respondents aggrieved by the said order preferred the revision. The revisional court allowed the revision of the accused/respondents and the order passed by the court below summoning them was quashed and the matter was remanded to decide afresh on the point of taking cognizance.

6. It is submitted by the learned counsel for the revisionist that the order passed by the revisional court suffers from manifest error, and without application of judicial mind. The learned Magistrate has taken cognizance on the basis of protest petition and the statement of the witnesses recorded during investigation by the Investigating Officer. It was further submitted that the learned Magistrate has exercised his power under Section 190 (1) (b) Cr.P.C. and taken cognizance against the accused persons. This order does not suffer from any illegality. The order passed by the revisional court remanding the case to decide afresh is liable to be set aside.

7. It was submitted from the side of the private respondents that the Magistrate has erred in taking cognizance under Section 190 (1) (b) Cr.P.C. It was further submitted that the protest petition was supported with the affidavit of the complainant, and also was supported by the affidavit of other witnesses, hence cognizance cannot be taken under Section 190 (1) (b) Cr.P.C.

8. In support of his argument learned counsel for the private respondents relied upon the decisions in the cases of Deokinandan and others v. State of U.P. and others, 1996 Cr.L.J. 61; Anil Kumar Chauhan v. State of U.P. and another, 2004 (49) ACC 345; and M/S Dayal Trading Co. v. State of Orissa and others, 1990 Cr.L.J. 715.

9. Before examining the contention of the learned counsel for the parties, it will be apt to refer to some of the provisions of Chapters XIV, XV and XVI Cr.P.C.,

10. Chapter XIV deals with the conditions requisite for initiation of proceedings and as to the powers of cognizance of a Magistrate. For the purpose of disposal of this revision, it is enough if Section 190 (1) alone be reproduced: -

"Section 190 (1). Cognizance of offences by Magistrates-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 person other than a police officer, or upon his own knowledge, that such offence has been committed."

11. Chapter XV which contains Section 200 to 203 deals with "Complaints to Magistrate". A Magistrate taking cognizance of an offence on complaint is required by Section 200 to examine the complaint and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case, upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 203 empowers the Magistrate to dismiss the com- plaint, if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding.

12. Chapter XVI deals with "Commencement of Proceedings before Magistrates" and Section 204 empowers a Magistrate to issue summons or a warrant as the case may be, to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding."

13. In the case of India Carat Pvt. Limited v. State of Karnataka, 1989-AWC-1-386 the Apex Court has held that "it may be seen that on receipt of a complaint a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200. After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203. On the other hand if in his opinion there is sufficient ground for proceeding he may issue process under Section 204. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156 (3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173 (2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(c) and issue process straight away to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.

14. In the present case, the Magistrate has taken cognizance of the offence alleged to have been committed by the private respondents, and ordered issue of process without first examining the revisionist, and his witnesses, the question for consideration would be whether the Magistrate is entitled, under the Code to have acted in that manner.

15. The power of a Magistrate to take cognizance of an offence under Section 190 (1) (b) of the Code even when the police report was to the effect that the investigation has not made out any offence against an accused has already been examined and set out by the Apex Court in Abninandan Jha and others v. Dinesh Misra, AIR 1968 SC 117 and H.S. Bains v. State, AIR 1980 SC 1883.

16. In the case of Abninandan Jha and others v. Dinesh Misra (supra) the question arose whether a Magistrate to whom a 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. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156 (3) and if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report.

17. In the case of H.S. Bains (supra) the Apex Court has pointed out that in the case of Abninandan Jha and others v. Dinesh Misra (supra) the reference to Section 190 (1) (c) was a mistake and it should have been Section 190 (1) (b). 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.

18. In the case of Pakhando and others v. State of U.P. and another, 2001 (43) ACC 1096 a Division Bench has held that "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.

19. In the instant case, perusal of the order of the Magistrate dated 29.1.2011 reveals that though an affidavit of the informant was annexed with the protest petition along with of other persons, but the court below has considered only the evidence recorded by the Investigating Officer. He has not considered the fact and/or even referred to the affidavits filed along with protest petition. The learned Magistrate has specifically mentioned that on the basis of evidence of informant and the witnesses collected during the investigation, there is evidence to take cognizance against Mahi Pal Singh, Raghuraj Singh, Chandra Shekhar @ Bhole, Pushendra and Gabbu under Sections 147, 148, 149, 307, 452, 324, 504 and 506 IPC.

20. No doubt, the Magistrate has while taking cognizance written in his order that the protest petition has been allowed, but that does not mean that the procedure of complaint case should have been followed.

21. In the case of Deokinandan and others (supra) too, this Court has held that "Even if it is assumed for argument's sake that the learned Magistrate could not have considered the affidavit while taking cognizance under Section 190 (1) (b), Cr.P.C. the order of the Magistrate will clearly indicate that he has, in fact, come to the conclusion that the statements recorded by the investigating officer during further investigation, namely, the statements of the complainant and his witness Satish, Naresh and the nurse Smt. Kunti Devi alias Manorama under Section 161, Cr.P.C. fully support the prosecution version. These observations of the learned Magistrate show that, in fact, he has found his opinion on the basis of the statements under Section 161, Cr.P.C. No doubt, a little further in his order, he has stated that on a consideration of the affidavit of the complainant and the statements in the case diary, prima facie, case is made out but it is quite evident that this opinion is not really based on the affidavit of the complainant but on his statement and statement of these witnesses recorded under Section 161, Cr.P.C. The statement of the complainant has also been recorded under Section 161, Cr.P.C. If he merely filed an affidavit to the same effect, it could not be said that the learned Magistrate was really influenced by the affidavit and not by the statement under Section 161, Cr.P.C. If he could take cognizance on the basis of the statement under Section 161, Cr.P.C, as he could, indeed, do, according to law, merely filing of an affidavit of the complainant in addition to that statement under Section 161, Cr.P.C could not make any difference in the situation. For this reason also, the submission of the learned counsel for the petitioners cannot be accepted."

22. The decision relied upon by the learned counsel for the private respondent in M/S Dayal Trading Co. v. State of Orissa and others, 1990 Cr.L.J. 715 is not on the point involved in this revision. The Orissa High Court has simply laid emphasis that "the act of taking cognizance of an offence is not a mere formality. An order of cognizance results in issuance of summons and a criminal proceeding against a person commences putting him into mental agony and expenditure. He is also exposed to the risk of punishment. Therefore, before cognizance of an offence is taken the Magistrate is duty bound to apply his judicial mind in order to find out whether on the facts alleged by the prosecution there is a prima facie case so as to issue process.

23. In the decision of this Court in the case of Anil Kumar Chauhan v. State of U.P. and another (supra) referred by the learned counsel for the private respondents it has been held that after receipt of 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. The decision is not inconsonance with the Division Bench decision in the case of Pakhando and others v. State of U.P. and another (supra), and in view of this the decision in Pakhando and others v. State of U.P. and another (supra) at all shall prevail.

24. From the discussions made above, this criminal revision is liable to be allowed, and is hereby allowed. The order passed by the revisional court dated 9.9.2011 in Revision No.125 of 2011 is set aside, and the Magistrate is directed to proceed with the case in accordance with law.

Order Date :- October 24, 2013

Anupam

(Justice Arvind Kumar Tripathi - II)