Rahul Sahai vs State Of U.P. & Another
2017 Latest Caselaw 7127 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Court No. - 49
 
Case :- APPLICATION U/S 482 No. - 36662 of 2017
 
Applicant :- Rahul Sahai
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Tarun Varma
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Mrs. Vijay Lakshmi,J.

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

The applicant, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with prayer to quash the entire proceedings of Case Crime No.418 of 2013, under Sections 406 and 420 I.P.C., P.S.Muradnagar, District-Ghaziabad, pending in the Court of Additional Chief Judicial Magistrate-6 Ghaziabad. Prayer has also been made to quash the summoning order dated 15.4.2015, passed by the Additional Chief Judicial Magistrate-6, Ghaziabad as well as the Non Bailable Warrants issued against the applicant on 17.8.2017.

Learned counsel for the applicant has contended that the applicant is a bank employee who has been falsely implicated in this case. The police after investigation had submitted final report in the matter, against which protest petition was filed by O.P. No.2/complainant. The learned Magistrate, rejected the final report and while allowing the protest petition by the impugned order dated 15.4.2015 summoned the applicant, without following the proper procedure.

Learned counsel for the applicant has vehemently argued that the learned Magistrate, before issuing summons against the applicant, 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/applicant. 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.

Learned A.G.A. has opposed the application, 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 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 15.4.2015, 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 etc. In the present case, this is not the situation.

In view of the above, there was no illegality in directly summoning the applicant.

The application lacks merit and it is accordingly, dismissed.

At this juncture, learned counsel for the applicant prayed that as the applicant is a bank employee posted at Patna, he may be granted a time of 30 days to surrender before the court and the court below be directed to consider his prayer for bail in light of the law as laid down in the Amrawati and another Vs. State of U.P., 2005 CriLj 755 and affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (4) SCC, 437. It has also been prayed that the applicant be permitted to move a discharge application through counsel before the court below.

In view of the facts and circumstances of the case, it is directed that if the applicant moves an application for discharge through counsel before the court concerned, at the appropriate stage of trial, the court below shall dispose it of in accordance with law as expeditiously as possible.

As the law laid down in both the aforesaid cases, should be complied with in letter and spirit, by all courts, it is expected from the trial court that in case the applicant surrenders before it within 30 days from today and applies for bail, it will decide his bail application in wake of the law laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P., 2005 CriLj 755 and affirmed by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (4) SCC, 437.

For the aforesaid period of 30 days, which shall in no case be extended any further, no coercive action shall be taken against the applicant.

Order Date:-20.11.2017-SB