Karan Singh And Another vs State Of U.P. And Another
2015 Latest Caselaw 3708 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 53
 

 
Case :- APPLICATION U/S 482 No. - 32155 of 2015
 

 
Applicant :- Karan Singh And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Pankaj Kumar Gupta
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Pankaj Naqvi,J.

Heard Sri Pankaj Kumar Gupta, learned counsel for the applicant and the learned A.G.A.

This application under Section 482 Cr.P.C. is directed against the order dated 20.6.2015, by the C.J.M, Auraiya in Case No.1209/2015 (Case Crime No.312/2014), rejecting a final report, allowing the protest and summoning the applicants under Sections 307/323/452/506 IPC.

An FIR came to be lodged by the applicant on 24.1.2014 as Case Crime No.18/2014 under Sections 406/420 IPC as against O.P. No.2, involving a purchase of four-wheeler-vehicle on a loan in the name of the applicant and in retaliation thereof, O.P. No.2 and his cohorts on 29.8.2014, came to the house of applicant no.1 with lathi, dandas, hurling filthy abuses and physically assaulted the applicants. The applicants went to lodge the FIR, but as the same was not entertained, an NCR No.124/2014 was registered on 29.8.2014. After medical examination of applicant no.1 on an application under Section 155(2) Cr.P.C, the learned C.J.M, Auraiya on 20.10.2014, directed the S.H.O, P.S. Bidhuna to investigate the NCR No.124/2014, convert the NCR into a cognizable case and in compliance thereto, a charge-sheet in Case Crime No.199/2015, under Section 308/323/504/506 IPC, P.S. Bidhuna, Auraiya was submitted on 1.5.2015, but in retaliation, O.P. No.2 filed an application under Section 156(3) Cr.P.C against the applicants on 3.9.2014 on false and fabricated grounds, which came to be allowed and FIR registered on 20.10.2014 at P.S. Bidhuna, Auraiya as Case Crime No.312/2014, under Sections 307/323/452/506 IPC but after investigation, a final report was submitted on 21.10.2014. However, O.P. No.2 filed a protest, which came to be allowed on 20.6.2015 by the court below, rejecting the final report and summoning the applicants under Sections 307/323/452/506 IPC, which is impugned herein.

The submission is that the impugned order stands vitiated as the learned Magistrate took into consideration the foreign materials such as the affidavits, which were not forming a part of the case diary.

Learned A.G.A has opposed the submission on the ground that the materials which has been considered by the learned Magistrate, is the one, forming part of the case diary, thus the impugned order could not be faulted.

The Division Bench of this Court in the case of Pakhandu vs. State of U.P. and others, 2002 (1) JIC 102 has laid down the following 4 options, which are available to the Magistrate in the event a final report is submitted-

(1) 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.

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

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

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

Thus, what follows from the aforesaid is that if upon submission of a final report, the Magistrate is satisfied that there are materials forming part of the case diary, which are sufficient to proceed against the accused, then it is open for him to take cognizance of the offence and proceed under Section 190(1)(b) of the Code, but while doing so, he is not to place any reliance on foreign materials such as affidavits, which are not forming part of the case diary, else the protest would have to be treated as a complaint.

Reverting to the case, the Court finds that the learned Magistrate while passing the impugned order, took into consideration the statement of the informant Chhavinath Singh/O.P. No.2, who alleged that on 29.8.2014 at about 7 pm while he was sitting at the exit of his house along with one Kailash Singh, the applicants armed with deadly weapons entered the house and with a view to kill him, fired shots which missed the target but inflicted lathi, danda and leg fist blows. The learned Magistrate found that the Investigating Officer took into consideration certain affidavits, which became the basis of submission of the final report. The learned Magistrate was of the view that the course adopted by the Investigating Officer was improper and inappropriate, as the acceptance of the said affidavit was in teeth of Section 162 CrPC, which prohibits the use of any signed statements by the Investigating Officer. But the learned Magistrate was of the view that if the aforesaid affidavits are excluded, then the materials available in the case diary including the statement of the informant/ O.P. no.2 and the injury report were sufficient to proceed against the applicants under Section 190(1)(b). No illegality could be demonstrated in the view taken by the learned Magistrate.

The decision in the case of Naresh Pal Singh vs. State of U.P, 2014(1) All JIC 417 sought to be relied by the learned counsel for the applicant, the Court finds that in the said case, upon an FIR being lodged, after investigation a final report was submitted, which was contested by a protest which came to be allowed, cognizance taken under Section 190(1)(b) of the Code as police case and against the same, a revision was allowed and the order of cognizance was set aside and matter remanded for fresh cognizance on 9.9.2011. The order dated 9.9.2011 was challenged before this Court by the informant Naresh Pal Singh. A perusal of para 20 thereof would show that this Court held that no doubt the Magistrate while taking cognizance, had written in his order that the protest has been allowed but that does not mean that the Magistrate was bound to follow the procedure of a complaint case. The said case would have no application to the present case.

Thus, what follows from the aforesaid discussion is that while allowing the protest petition, it is always open for the Magistrate as one of the four options given in Pakhandu (supra) that if the Magistrate is satisfied that there are existing materials in the case diary, which prima facie make out a case for commission of an offence and summoning of an accused, he may do so under Section 190(1)(b). The only embargo is that while doing so he shall not place any reliance on any foreign material brought before him which is not forming a part of the case diary.

In view of the above discussion, the order dated 20.6.2015, rejecting a final report, allowing a protest and summoning the applicants in respect of all the above offences, cannot be faulted.

The application lacks merit and is dismissed.

Order Date :- 2.11.2015

Chandra