Om Prakash Pandey vs State Of U.P. & 3 Ors.
2017 Latest Caselaw 2605 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 10						   A.F.R.
 
Case :- U/S 482/378/407 No. - 2191 of 2008
 
Applicant :- Om Prakash Pandey
 
Opposite Party :- State Of U.P. & 3 Ors.
 
Counsel for Applicant :- G.P. Tiwari,S.P. Tiwari
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Ajai Lamba,J.

1.    The legal issue raised before this Court is whether a Magistrate on receiving final report under Section 173(2) Cr.P.C. indicating that no offence has been committed by the accused, can take cognizance of the offence and summon the accused on the basis of that report, while disagreeing with the conclusion drawn by the investigating agency?

2.    It appears to be a case  in which Hari Ram lodged a report on 5.4.1998 in regard to an incident of that date.  Apparently, Sandeep had been shot.  Sandeep received gun shot injuries and was taken to the hospital and could be saved. 

3.    Crime was registered as Case Crime No.77 of 1998 for committing the offence under Section 307 I.P.C. in Police Station Haiderganj, District Faizabad. Statement of the injured was also recorded under Section 164 Cr.P.C.  The accused were named.  The medico legal report prima facie supported the statement of the victim, however, final report was submitted by the investigating agency.   The Magistrate concerned issued notice to the complainant in accordance with the procedure.  Complainant Hari Ram alongwith Sandeep Kumar, the injured filed protest petition vide Annexure No.4. Vide Annexure No.5 dated 9.7.1999, final report was not accepted and further investigation was ordered by the Magistrate.

4. It appears that the investigating agency, even on ''further investigation', reiterated the conclusion that the offence had not been committed by the accused. Again, final report was filed before the Magistrate.

5. Vide impugned order dated 16.12.1999, Annexure No.6, the Magistrate did not agree with the findings recorded by the investigating agency and summoned the accused to stand trial. Non bailable warrants, as a consequence of order dated 16.12.1999, also impugned by way of this petition, have been issued.

6. The petitioner filed a revision petition against impugned order dated 16.12.1999. The revision petition has been dismissed vide Annexure No.7 dated 8.9.2005. The order passed by the revisional court is also under challenge in this petition filed under Section 482 Cr.P.C.

7.      Learned   counsel   for   the  petitioner  has  not 
 
appeared. 
 
8.   The case relates to  June, 2008.   The court cannot wait for indefinite period for the counsel.  Under the circumstances, the impugned orders have been perused and legality thereof has been considered with the assistance of learned counsel for the State namely Ms. Nand Prabha Shukla.
 

9.    The revision petition was preferred by the accused petitioner taking specific ground that the order passed by the Magistrate was without jurisdiction insomuch as the statements of the complainant and other related witnesses had not been recorded before summoning the accused. It apparently was asserted that the case had to be treated as a complaint case.

10.      The revisional court has considered the legality of the order passed by the Magistrate in context of the judgements rendered by Hon'ble Supreme Court and this Court.

It has been considered by the revisional court in impugned order dated 8.9.2005 that on receiving final report, the Magistrate had two options viz. to treat the protest petition as complaint and proceed as if it was a complaint case.  The second option available with the Magistrate was to consider the police report itself and summon the accused taking cognizance under Section 190 (1) (b) Cr.P.C.  The latter procedure has been followed by the Magistrate and therefore the order of the Magistrate did not suffer from any illegality.

11. I have gone through the available documents and have considered whether the Magistrate in summoning the accused on the basis of final report; and the revisional court in dismissing the revision petition, have committed any illegality in procedure or not.

12. The Hon'ble Supreme Court has considered the options available with the Magistrate in such cases.

13. The Hon'ble Supreme Court of India in India Carat Pvt. Ltd. Vs. State of Karnataka and another : 1989 SCC (2) 132, has considered the powers of a Magistrate in relevant context. The following (relevant portion) has been held :-

"9. Before we examine the contentions of the learned counsel for the appellant and the second respondent, we may briefly refer to some of the provisions in Chapter XII, XIV, XV and XVI of the Code. Section 155 in Chapter XII pertains to information laid to the police regarding non-cognizable cases and sub-Section (2) lays down that no police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. Section 156(1) confers power on an officer in charge of a police station to investigate any cognizable case without the order of a Magistrate. Section 156(3) authorises a Magistrate, empowered under Section 190 to order the police to make an investigation as provided for in Section 156(1). The other provisions in the Chapter from Section 157 onwards set out the powers of investigation of the police and the procedure to be followed. Section 169 prescribes the procedure to be followed by an officer in charge of a police station if it appears to him upon investigation of a case that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Section 170 prescribes the procedure to be followed by the officer in charge of police station if it appears to him upon investigation of a case that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Section 173(1) enjoins a Police Officer to complete the investigation without unnecessary delay. Section 173(2) lays down that as soon as the investigation is completed the officer in charge of a police station should forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the prescribed form stating the various particulars mentioned in that Sub- Section.

10. Chapter XIV deals with the conditions requisite for initiation of proceedings and as to the powers of cognizance of a Magistrate. For our purpose it is enough if we extract Section 190(1) alone.

"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 Magistrates". A Magistrate taking cognizance of an offence on complaint is required by Section 200 to examine the complainant 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 complaint, if after considering the statements on oath (if any) of the complaint 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. From the provisions referred to above, 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 complaints 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) (b) and issue process straightaway 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 complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.

14. Since in the present case the Second Additional Chief Metropolitan Magistrate has taken cognizance of offences alleged to have been committed by the second respondent and ordered issue of process without first examining the appellant and his witnesses, the question for consideration would be whether the Magistrate is entitled under the Code to have acted in that manner. The question need not detain us for long because 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 this Court in Abninandan Jha v. Dinesh Misra and H.S. Bains v. State. In Abhinandan Jha v. Dinesh Misra 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. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police, the Court observed that the Magistrate could take cognizance under Section 190(1)(c). The reference to Section 190(1)(c) was a mistake for Section 190(1)(b) and this has been pointed out in H.S. Bains ."

(emphasised by me).

14.  From a perusal of the extracted portion from the judgement rendered by the Hon'ble Supreme Court of India in India Carat Pvt. Ltd.(supra), it is evident that in reference to the provisions of the Code of Criminal Procedure, the powers of a magistrate have been considered. It has been held 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 witnesses 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 Cr.P.C.

On the other hand, if in his opinion, there is sufficient ground for proceeding, he may issue process under Section 204 Cr.P.C.

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.

15. The Hon'ble Supreme Court of India has held that there is yet another course open to the Magistrate viz. instead of taking cognizance of the offence and following the procedure laid down under Section 200 or 202 Cr.P.C. (as noted above), he may order an investigation to be made by the police under Section 156 (3) Cr.P.C. When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2) Cr.P.C.

On receiving the police report, the Magistrate may take cognizance of the offence under Section 190 (1) (b) Cr.P.C. and issue process straightaway to the accused. The Magistrate may exercise his power in this behalf irrespective of the view expressed by the police in their report. This is because the police report under Section 173(2) Cr.P.C. will contain the facts discovered or unearthed by the investigating agency as well as the conclusion drawn there from. The Magistrate is not bound by the opinion of the investigating officer as to whether an offence has been made out or not.

16. The Hon'ble Supreme Court has specifically held that the Magistrate has the power to take cognizance of an offence under Section 190 (1) (b) Cr.P.C. even when the police report is to the effect that the investigation has not made out any offence against the accused.

The Hon'ble Supreme Court has however maintained that if the police files a report under Section 173(2) Cr.P.C. with the conclusion that no case is made out against the accused, the Magistrate has no jurisdiction to direct the police to submit a chargesheet, but it is open to the Magistrate to agree or disagree with the police report.

17. It has been averred in the judgement that if the Magistrate agrees with the report that there was no case made out for issuing process to the accused, he may accept the report and close the proceeding.

If the Magistrate comes to the conclusion that further investigation is necessary, he may make an order to that effect under Section 173 (8) Cr.P.C.

If the Magistrate is of the opinion that the facts set out in the police report constitute an offence, he can take cognizance of an offence notwithstanding the contrary opinion of the police expressed in the report.

18. In the case in hand, the investigation/ further investigation has been concluded. The police has furnished a report under Section 173(2) Cr.P.C. with the conclusion that the offence has not been committed and no case against the accused is made out. From the order of the Magistrate, it is evident that the Magistrate disagreeing with the report, has summoned the accused to stand trial on the basis of the police report itself.

19. In view of the law laid down by the Hon'ble Supreme Court of India, as above, this Court finds no illegality in the action of the Magistrate. The Magistrate has proceeded within his jurisdiction to disagree with the report of the police, for reasons recorded in the order. I find the reasons recorded by the Magistrate to be based on relevant facts and disclosures emanating from the investigation file.

20. The revisional court has considered the law in its right perspective and endorsed the order passed by the Magistrate. I find no error in exercise of jurisdiction by the revisional court also.

21. In the considered opinion of the court, manifest injustice would be caused if the order passed by the Magistrate Annexure No.6 and the order passed by the revisional court Annexure No.7 are quashed. So as to secure the ends of justice, criminal proceedings against the petitioner are required to be continued, as directed by the Magistrate vide Annexure No.6.

22. In view of the above well settled legal position, the petition is dismissed.

23.  Let a copy of this order be forwarded to  Chief Judicial Magistrate, Faizabad who shall ensure that the proceedings in the matter are undertaken in the concerned court, expeditiously.

Order Date :- 21.7.2017

Shukla