Shivprakash And Another vs State Of U.P. And Another
2017 Latest Caselaw 6884 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 49
 

 
Case :- APPLICATION U/S 482 No. - 37457 of 2017
 
Applicant :- Shivprakash And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Durga Prasad
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

Heard learned counsel for the applicants and learned A.G.A. for the State. Perused the records.

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 entire proceedings of the case pursuant to Final Report No. 137 of 2016, under Sections 452, 376-D, 323, 504 and 506 I.P.C., Police Station Lalauli, district Fatehpur as well as the summoning order dated 29.7.2017 passed on the aforesaid Final Report.

The facts in brief are that an application under Section 156(3) Cr.P.C. was filed before the court of Judicial Magistrate, Fatehpur alleging therein that on 13.5.2016 at 11.00 A.M., when the prosecutrix was cooking food in her house, all the four accused persons, armed with country made pistols, entered into her house. The children of the prosecutrix had gone to school at that time and she was all alone. The accused persons caught hold of the prosecutrix and committed gang rape with her. The prosecutrix became semi-unconscious due to use of force by the accused persons and asked for the water on which the accused persons urinated in her mouth and left the place threatening her to kill. When the husband of the prosecutrix returned to his house and came to know about the entire episode, he went to the house of the accused persons to complain, on which the accused persons started beating him with kicks and fists using abusive language against him and his wife. The prosecutrix tried to lodge the report but when the report was not lodged by the concerned police, she moved an application under Section 156 (3) Cr.P.C. on which the learned Magistrate directed the police to register the case and to investigate the matter.

The police after investigation submitted Final Report in the matter against which the prosecutrix moved a protest petition repeating the same allegations, she had made against the the applicants in the F.I.R. The learned Magistrate by the impugned order dated 29.7.2017 allowed the protest petition and rejected the Final Report directing the office to summon the accused Mewa Lal and Shiv Prakash under Sections 452, 376D, 504 and 506 I.P.C. and accused Subhash and Jay Prakash under Section 323, 504 and 506 I.P.C., to face trial.

Learned counsel for the applicants has contended that the applicants are innocent and they have been falsely implicated in this case due to ulterior motive by opposite party no. 2. The F.I.R. against the applicants has been lodged as a counter blast of the N.C.R. Lodged earlier by the family members of the applicants against the husband and the son of prosecutrix (opposite party no. 2) in which the police has submitted chargesheet. It is further contended that the entire story is wholly concocted and the prosecution version does not find corroboration with medical evidence.

Learned A.G.A. has vehemently opposed the application by contending that considering the gravity of the offence, the court below has rightly rejected the Final Report and has allowed the protest petition. There is no need to interfere in the impugned order.

Considered the rival submissions.

The law regarding the issue involved in this application 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, after discussing in detail, various case laws, has observed that after concluding the investigation, 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 process, 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 cognizance 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 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."

A perusal of the impugned order dated 29.7.2017, clearly shows that the learned Magistrate has not taken into consideration any extraneous material while passing the impugned order and has summoned the applicant only on the material available in the case diary. Had the cognizance been taken by the Magistrate on the basis of some extraneous materials, the Magistrate would have adopted the procedure of complaint case as provided under Chapter XV of the Code of Criminal Procedure i.e. recording of the statements of the complainant and the witnesses under Sections 200 and 202 Cr.P.C. In the present case, this is not the situation.

In view of the above, there does not appear any illegality or irregularity in the order impugned making it liable to be quashed. Hence the prayer for quashing the impugned order is refused and the application is accordingly dismissed.

At this juncture learned counsel for the applicants prayed that the applicants are ready to surrender before the court below if a time of only 30 days be granted to them for such purpose. Prayer has also been made to direct the Court below to dispose of the bail applications of the applicants expeditiously.

Learned AGA has no objection against the aforesaid prayer.

The applicants are directed to surrender before the court below within 30 days from today and apply for bail. If they do so, the court below will decide their bail applications expeditiously in accordance with law.

For a period of 30 days from today, which shall, in no case be extended any further, no coercive action shall be taken against the applicants, in the above mentioned case. In case of default, the court below shall take coercive measures against them.

Order Date :- 15.11.2017

S.B.