Jaswant & 2 Others vs State Of U.P. & Another
2016 Latest Caselaw 5565 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 Reserved
 
A.F.R.
 
Case :- CRIMINAL REVISION No. - 1563 of 2016
 
Revisionist :- Ashok Kumar
 
Opposite Party :- State of U.P. & 2 Others
 
Counsel for Revisionist :- Ram Kumar Sinha
 
Counsel for Opposite Party :- G.A.
 
		Alongwith
 
Case :- CRIMINAL REVISION No. - 1606 of 2016
 
Revisionist :- Jaswant & 2 Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Ram Kumar Sinha
 
Counsel for Opposite Party :- G.A.
 
				--------
 
Hon'ble Mrs. Vijay Lakshmi, J. 

As both these revisions arise out of the same impugned order dated 29.2.2016 passed by learned Additional Chief Judicial Magistrate, Court No. 3, Etawah in the same Case Crime No. 194 of 2013 under Sections 307, 504 and 506 I.P.C., Police Station Civil Lines, district Etawah on the same Final Report No. 172 of 2013 (Jagvir Singh Vs. Jaswant and others), both are hereby being disposed of by this common order.

The revisionists in both these revisions are the accused persons of the same occurrence, which is said to have taken place on 23.4.2013, when one Lalji, the elder brother of the first informant, was going to some other village to meet his married daughter. At about 7.00 P.M. when he reached near the canal, he was intercepted by the accused persons reaching there on two motorcycles. One motorcycle blocked his way from the front side and the other from the back side. It has been alleged that the accused revisionists Jaswant, Amar Singh and Chet Ram alongwith one unknown person alighted from those motorcycles and surrounded the elder brother of the first informant/opposite party no. 3 from all sides. One of them exhorted with the words "BAHUT PAIRVI KARTA HAI, SAALE KO JAAN SE MAAR DO". On this, accused revisionists Jaswant took out a country made pistol and fired on Lal Ji. The fire hit on the inner side of joint of the left elbow of Lal Ji causing a through and through injury. Thereafter, seeing a car coming on that road, all the accused persons ran away from the spot on their motorcycles. The persons sitting in the car, saw Lal Ji lying on the road in an injured condition, they took him to the hospital and telephoned the police. The FIR of the incident was lodged on the same day, by the younger brother of injured at P.S. Civil Lines, Etawah, which was registered as Case Crime No. 194 of 2013 under Section 307 I.P.C. and investigation proceeded. During investigation the name of unknown accused came to light as Ashok (sole revisionist in Crl. Revision No. 1563 of 2016). However, after investigation, the I.O. submitted Final Report in the matter.

The first informant filed protest petition against the Final Report mentioning in detail about his own statement and statement of his injured elder brother Lal Ji recorded by the I.O. under Section 161 Cr.P.C. Besides it, he also mentioned about the recovery of cycle of Lal Ji from the place of occurrence by the police, the recovery of blood stained clothes of Lal Ji given by him to the police and the recovery memos prepared by the police with regard to aforesaid recoveries. In the protest petition it was alleged by the complainant that the I.O., in connivance with the accused persons, has submitted Final Report, ignoring the aforesaid statements of the witnesses including that of the injured, recorded under Section 161 Cr.P.C. in which he has fully supported the F.I.R. version and without even considering the injury report, corroborating the manner of occurrence, as mentioned in the F.I.R.

Learned Magistrate after considering all these facts, found that sufficient prima facie evidence was available on the case diary for allowing the protest petition and for summoning the accused persons under Sections 307, 504 and 506 I.P.C. Accordingly, it allowed the protest petition, quashed the final Report No. No. 172 of 2013 dated 3.5.2013 and summoned all the named accused persons vide impugned order with a further direction that the case shall proceed as a State case.

The legality and correctness of the aforesaid order passed by the learned Magistrate has been challenged in this revision mainly on the ground that the learned Magistrate, while passing the impugned order dated 29.2.2016, has not adopted the proper procedure required to be followed on a protest petition. Learned counsel for the revisionist has vehemently argued that the learned Magistrate, before issuing summons against the revisionists, was obliged to follow the procedure as laid down in Chapter XV of Cr.P.C. and it was only after recording the statements of the witnesses under Sections 200 and 202 Cr.P.C., that he could have summoned the accused/revisionists. Whereas, in the present case, the learned Magistrate, directly took cognizance on the protest petition and issued the summons without recording the statement of the complainant and the witnesses under Section 200 and 202 Cr.P.C.

In support of his contentions learned counsel for the revisionists has placed reliance on some judgments passed by the coordinate benches of this Court in the cases of Ahibaran Singh Vs. State of Uttar Pradesh; Laws (ALL)-1982-9-29, Kallu Vs. Shahid Ali; 1995 Cr.L.J. 3489 and Ghan Shyam Singh and others Vs. State & Arun Kumar; 2014 (3) ACR 2380.

Learned A.G.A. has opposed the revision, contending that there is no illegality in the impugned summoning order passed by the Magistrate and the learned Magistrate has rightly exercised the jurisdiction vested in him.

Considered the rival submissions.

The law regarding the issue involved in this revision is well settled.

If in any case the final report is submitted by the police, against which protest petition is filed by first informant then magistrate has following three options:-

1-He may accept the final report and drop the proceedings, or

2-He may direct the police for further investigation, or

3-He may summon the accused on further two grounds:-

(A) If he chooses to summon the accused on the basis of evidence collected by the Investigation officer, he may do so directly without any further evidence. or (B) If accused is summoned on the basis of protest petition, relying on extraneous material filed with protest petition, then he has to follow the procedure laid down under chapter XV of Cr. P.C. i.e. to treat the protest petition as complaint and record the evidence u/s 200 and 202 Cr P.C. and cognizance cannot be taken on the basis of extraneous material u/s 190 (1)(b) Cr .P.C, without following the aforesaid procedure."

A Full Bench of this court in the case of Ranjeet Singh & others Vs. State of U.P. 2000(1) JIC 399, discussing various case laws has observed that after concluding the intestigation, if final report is filed by the police, the three options open before the Magistrate are (1) He may accept the report and drop the proceeding, or (2) He may disagree with the report and take the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue proceeds, or (3) He may direct further investigation to be made by the Police under sub-section (3) of Section 156.

Section 190 of Cr.P.C. provides for the law relating to cognizance of offence by the Magistrate, according to which the Magistrate may take cognizance of any offence under the following three situations :-

( 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 of upon his own knowledge, that such offence has been committed.

It is only when the Magistrate takes congizance under section 190 (a) or Section 190 (c) that he is required to follow the procedure prescribed under Chapter XV Cr.P.C. In so far as the cognizance under Section 190 (b) is concerned, if the Magistrate is satisfied that sufficient material is available on case diary to make out a prima facie case against the accused, it can directly issue summons to them as has been done in the instant case.

The impugned order of the case in hand clearly shows that learned Magistrate has neither treated the protest petition as a complaint case nor has considered any extraneous material. The learned Magistrate has summoned the accused-revisionists only on the basis of evidence already available on case diary, collected by the I.O. during investigation viz. the statements of first informant and his injured brother recorded under Section 161 Cr.P.C., the recovery memo of blood stained clothes and cycle prepared by the police and the injury report of the victim. Relying on the aforesaid evidence and expressing its view that only due to the reason that some witnesses have not supported the prosecution case during their interrogation by I.O. under Section 161 Cr.P.C., the submission of Final Report by the I.O. does not appear to be justifiable, the learned Magistrate allowed the protest petition, quashed the Final Report and summoned the accused revisionists directly taking cognizance on such protest petition, further directing that the case to proceed as State case.

The same issue has been considered by the Constitution Bench of 5 Judges of Hon'ble Apex Court in the land mark case of Dharam Pal and others Vs. State of Haryana and another; 2014 (3) SCC 306. In this case the Apex Court framed 6 questions for consideration and question no. 3, which is reproduced below, involved the same issue :-

"Q III- Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?"

Answering the abovesaid question in para 25 of the judgment, the Hon'ble Apex Court held as under :-

"25. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court."

The judgment rendered by a coordinate bench of this Court in Ghanshyam Singh's case (supra) on which learned counsel has placed heavy reliance, is of no use to him, because the facts are entirely different. In Ghanshyam Singh's case during pendency of the Final Report the informant had filed his own affidavit and also the affidavits of 3 more persons before the Magistrate in support of the allegations made in the F.I.R. and the learned Magistrate had taken into consideration those affidavits too, while taking congizance.

Para 6 of the judgment in Ghanshyam Singh's case clearly shows that in that case the cognizance was taken by the Magistrate under Section 190 (1)( c ) i.e. after considering the extraneous materials filed before him, during pendency of Protest petition. Under this situation, the revision was allowed by the coordinate Bench of this Court.

In Ahibaran Singh's case (supra) also the Magistrate had treated the protest petition as complaint case. Hence it was held by this Court that before passing the summoning order, if the case is such, as triable by the court of sessions, the procedure provided under Section 202 (2) and 204(2) Cr.P.C. has to be complied with.

In view of the well settled and clear legal position as discussed above, both these revisions appear to be without any substance and are liable to be dismissed at the admission stage itself.

Both the revisions are accordingly dismissed.

Dated : 31st August, 2016

S.B.