Ram Prakash & Others vs State Of U.P. & Another
2017 Latest Caselaw 1593 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 52
 

 
Case :- APPLICATION U/S 482 No. - 3725 of 2003
 

 
Applicant :- Ram Prakash & Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Arvind Kumar Srivastava
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

The applicants, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to quash the order dated 19.2.2000 passed in S.S.T. No. 22 of 2000 by the Special Judge (D.A.A.), Kanpur Dehat, whereby the applicants have been summoned u/s 395 I.P.C. A further prayer has also been made to quash the entire proceedings of the aforesaid case.

Heard learned counsel for the applicants and learned AGA. Perused the record.

At the very outset, it is relevant to mention that this application is pending since the year 2003. Vide order dated 28.5.2003 this court had directed to issue notice to O.P. No. 2. However, the notice could not be served on O.P. No. 2 (complainant) due to incorrect address supplied by the applicants. Therefore, this court vide order dated 19.5.2014 directed the applicants to supply correct address of the respondent no. 2 in the office of this court. However, the office report dated 31.5.2014 shows that the learned counsel for the applicants did not supply the correct address of O.P. No. 2, hence the notice could not be issued to him. After 19.5.2014 there is no order on the order-sheet.

On being enquired, the learned counsel for the applicants submitted that as the applicants have not contacted with him since several years, he has no knowledge about the present address of the applicants, therefore, he is unable to supply correct address of O.P. No. 2.

Learned counsel for the applicants and learned AGA both have prayed that under these circumstances and as only a legal issue is involved in the present case, it may be disposed of in accordance with law today because it is pending since the year 2003 and has become critically old.

As the learned counsel for the applicants is unable supply correct address of O.P. No. 2 and he has stated at Bar that the applicants have not made any contact with him since long, no useful purpose is going to be served in keeping this matter pending. As only a legal issue is involved in this matter, I am deciding this case confining myself to that legal issue only.

The relevant facts in brief are that an application u/s 156(3) Cr.P.C. was filed by O.P. No. 2 against the applicants on 21.3.1998, which was allowed by the learned Magistrate vide order dated 1.4.1998 and the concerned police was directed to register and investigate the case and to submit report within one month. Accordingly, the police registered the case at Crime No. 38 of 1998, u/s 395 I.P.C. on 9.4.1998. However, after concluding the investigation, the police submitted final report on 5.5.1998. The learned Magistrate issued notice to the complainant to file protest petition, if any, against the final report on which the complainant (O.P. No. 2) filed a protest petition along with affidavits of two witnesses Kunwar Singh and Hoti Lal. The learned Magistrate allowed the protest petition and rejected the final report submitted by the police and summoned the applicants, taking into consideration the statements of the witnesses filed by means of the affidavits along with protest petition by the complainant.

The legality and correctness of the aforesaid order passed by the learned Magistrate has been challenged by the applicants mainly on the ground that the learned Magistrate, without taking into consideration that in the aforesaid matter the police had twice submitted final reports, has allowed the protest petition. It is further contended that the learned Magistrate has summoned the applicants, without following the proper procedure as envisaged under the Cr.P.C. and has arbitrarily and illegally summoned the applicants taking into cognizance of the extraneous material filed in the shape of affidavits of two witnesses along with protest petition, which is not permissible.

On the aforesaid grounds learned counsel for the applicants has prayed that the impugned order be quashed.

Learned AGA has opposed the application but he has fairly conceded that proper procedure has not been followed by the learned Magistrate, while summoning the applicants.

Considered the rival submissions of learned counsel for the parties.

The law regarding the issue involved in this matter 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 the 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.

The impugned order in the instant case clearly shows that the learned Magistrate, apart from considering the statements of witnesses available in the case diary, has also considered the extraneous material i.e. the affidavits filed along with the protest petition by the complainant.

In the landmark judgment of Pakhandu and others Vs. State of U.P. and another, 2001(43) ACC 1096, a Division Bench of this court has held as under:

"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 the material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records."

In Surya Bhan Vs. State of U.P. and others, 2007(1) All JIC 784, this court has held as under:

"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. This shows that the Magistrate while taking cognizance under Section 190(1)(b) can only rely on the police report that means evidence and material collected by the Investigating Officer during investigation. The Magistrate cannot, therefore, take into consideration any extraneous material and if he does so, he should take cognizance under section 190(1)(a) and should proceed in the matter as a complaint case."

A Bench of five Hon'ble Judges of Hon'ble Apex Court in the case of Dharam Pal and others Vs. State of Haryana and another; 2014 (3) SCC 306, 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 above said 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."

Considering the facts of the instant case, in wake of the settled legal position as stated above, the impugned order dated 19.2.2000, which clearly shows that the Magistrate has considered the extraneous material (affidavits filed along with the protest petition), cannot be sustained and is liable to be set aside.

The application is allowed. The impugned order dated 19.2.2000 is set aside and the matter is remanded back to the Magistrate concerned with the direction to make a fresh look and pass a fresh order in the light of the settled legal position, as discussed above, preferably within three months from the date of production of a certified copy of this order.

Order Date :- 5.6.2017

Pcl