Braj Raj Singh @ Nanhu Singh And ... vs State Of U.P. And Another
2021 Latest Caselaw 2200 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 77
 

 
Case :- APPLICATION U/S 482 No. - 7764 of 2008
 

 
Applicant :- Braj Raj Singh @ Nanhu Singh And Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Tej Pal,R.P.S.Chauhan,S.C.Dwivedi,Sukhendu Pal Singh
 
Counsel for Opposite Party :- Govt. Advocate,A.N. Singh,C.K.Jha,Kuldeep Kumar Mishra,S.S.Tiwari
 

 
Hon'ble Pankaj Bhatia,J.

Heard learned counsel for the parties and perused the record.

The present application has been filed against the summoning order dated 21.10.2002, whereby the applicants have been summoned by the Magistrate under Section 364 IPC in exercise of its power under Section 190 Cr.P.C..

The neat submission of the counsel for the applicants is that along with the protest petition filed against the final report, two fresh documents were filed and the court below has passed the order summoning the applicants based upon the said two documents also. He argues that the law is very well settled that while Magistrate has a power to ignore the conclusion arrived by the Investigating Agency and is not bound to follow the procedure laid down under Section 200 Cr.P.C., however, at that stage while considering the final report before the Magistrate, he can only act upon the statement of the witnesses as recorded by the police in the case diary and any other material collected during investigation.

In the event any other material is brought before him, he can take cognizance thereof only by taking the recourse to the procedure prescribed under Section 190(1)(a) of the Code and to call upon the complainant to examine himself and the witnesses present, if any, under Section 200 Cr.P.C. The law is well settled that whenever a report is filed under Section 173 (2) Cr.P.C. the Magistrate has three courses to follow either; to take cognizance of the offence by taking recourse to the proceedings under Section 200 Cr.P.C. or to direct further investigation if the Magistrate is not satisfied or to take cognizance on the basis of material available before him in the charge-sheet filed by the police authorities.

The powers of the Magistrate on receipt of a police report under section 173(2) Cr.P.C. were dealt with by this Court in the case of Pakhando and others vs. State of U.P., [2001 (43) ACC 1096] wherein the Division Bench had held as under:

"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 ând 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.

In view of what we have stated above the question referred to by the learned Single Judge is answered as follows-

Where cognizance has been taken under Section 190(1)(b) Cr.P.C. only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to sub- section (2) of Section 202 Cr.P.C. shal1 have no application. The contrary view expressed in Mohabbat Ali's case is not a correct proposition of law."

A similar matter arose for consideration in the case of Mohammed Yusuf and others vs. State of Uttar Pradesh and another, 2007 SCC OnLine All 1283 wherein the Single Judge of this Court held as under:

"Where the Magistrate decides to take cognizance under Section 190(1)(b) ignoring the conclusions reached at by the Investigating Officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigation Officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Sections 200 and 202 Cr.P.C. The Magistrate could not take cognizance under Section 190(1)(b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taken into account extraneous material i.e. protest petition and affidavits while taking cognizance under Section 190(1)(b) Cr.P.C the impugned order is vitiated."

The said Single Judge judgement in the case of Mohammed Yusuf (supra) was noticed by the Supreme Court in the case of Vishnu Kumar Tiwari vs. State of Uttar Pradesh and another, 2019 (8) SCC 27 and was implicitly approved. Para 36 and 37 are as under:

"36. A learned Single Judge of the High Court of Allahabad, in the aforesaid decision, had this to say in paragraph 11:

11. Where the Magistrate decides to take cognizance under Section 190(1)(b) ignoring the conclusions reached at by the Investigating Officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigation Officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Sections 200 and 202 Cr.P.C. The Magistrate could not take cognizance under Section 190(1)(b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taken into account extraneous material i.e. protest petition and affidavits while taking cognizance under Section 190(1)(b) Cr.P.C. the impugned order is vitiated."

37. The Chief Judicial Magistrate has adhered to the law laid down by the learned Single Judge. In fact, we may notice that in regard to this aspect, if the learned Single Judge, who has rendered the impugned judgment in this case, had a different view, he ought to have referred the matter to a larger Bench."

In view of the settled position and following the judgement of this Court in the case of Mohammed Yusuf (supra), I am of the firm view that once material other than the material contained in the final report is brought to the knowledge of the Magistrate, he is bound to take recourse to the proceedings under section 190(1)(a) of Cr.P.C. or to direct further investigation by the police authorities.

In the present case while summoning the applicants the Magistrate has relied materials other than what were contained in the final report filed by the police authorities under section 173(2) Cr.P.C. and on that ground alone the order dated 21.10.2002 is liable to be set aside and is, accordingly, set aside.

The matter is remanded for taking a fresh decision in accordance with law. The said decision shall be taken as expeditiously as possible.

Office is directed to send the copy of this order to the court concerned through District Judge, Budaun.

The application is accordingly disposed off.

Order Date :- 10.2.2021

pks/Puspendra