Allahabad High Court
Surendra Babu And Another vs State Of U.P. And Another on 19 March, 2021
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 77
Case :- APPLICATION U/S 482 No. - 4588 of 2010
Applicant :- Surendra Babu And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Yashwant Singh,Raj Kumar Singh,Ram Om Vikram Singh Chauh,Ravi Sahu
Counsel for Opposite Party :- Govt. Advocate,Ranjeet Singh
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application has been filed solely on the ground that in terms of an FIR, which was registered on 6.4.2009, a report was filed under section 169 Cr.P.C by the Investigating Officer which was rejected by the Judicial Magistrate, Kanpur Dehat vide his order dated 6.6.2009 in respect of one Shashi Kant and Surendra Babu without giving an opportunity of hearing. The order dated 9.6.2009 is on record as Annexure No. 6.
I have perused the said order.
The Judicial Magistrate has recorded that despite there being overwhelming evidence on record in the form of statements of the informant and Mahendra as well as the witness Pawan Kumar, Brijesh and Sarvesh, who have taken the name of the applicants and thus proceeded to take cognizance against them. There is no error in the said order warranting interference by this Court.
Counsel for the applicant argues that after the filing of the First Information Report, the police authorities investigated the matter and came to a conclusion that no case was made out against the applicants namely Shashi Kant and Surendra Babu, both sons of Shyam Babu and in that respect a report was filed under Section 169 CrPC. The learned Trial Court considered the chargesheet as against the other co-accused as well as the report submitted under Section 164 CrPC in respect of the applicants No. 1 and 2 and passed the order holding that there was overwhelming evidence on record as against the applicants and thus proceeded to summon the applicants also along with other co-accused vide impugned order dated 9.6.2009. Counsel for the applicant argues that once the report had been furnished under Section 169 CrPC, it was incumbent upon the Magistrate to record reasons for not placing reliance on the said report under Section 169 CrPC and thus, the order suffers from illegality and is liable to be set aside. He placed reliance on the judgment of this Court passed on 22.8.2016 in the case of Zareena Vs. State Of U.P. & another in Case :- U/S 482/378/407 No. - 5166 of 2016) and particularly referred to Paragraph Nos. 27 and 28 of the judgment, which is quoted herein below:
"27. In my opinion, the Magistrate ought to have given due regard to the claim made by the investigating Officer. After all, the Magistrate has only mentioned about two persons having stated about presence of the petitioner on the spot and of having attributed an active role to her; but has not considered why the investigating officer did not believe those persons. It may be observed that in the course of investigation, the investigating officer may come across several aspects of the matter which would enable him to form an opinion about correctness/ truth of the claim made by the persons who are examined by him. The Investigating Officer is expected to form a reasoned and well considered opinion and come to a proper conclusion. In fact, the process of investigation is required for that purpose only; and if the mere mention of a person's complicity in the offence by one or two persons is sufficient, there would be no point in investigating into the matter, at all. The Magistrate's displeasure about the opinion of the Investigating Officer- as evident from the direction given by him to forward a copy of the order to the Director General of Inspector, U.P., for taking legal action against the Investigating Officer- does not seem to be proper. The Investigating Officer is not expected to act mechanically and is entitled to form his own opinion about the truth of the matter. Unless there were sound grounds for indicating that the Investigating Officer was falsely and deliberately making the application under Section 169 of the Code with the object of favouring the petitioner for ulterior motives, there was no occasion to come down heavily on the Investigating Officer for forming a particular opinion. The order passed by the Magistrate does not indicate that he gave an opportunity to the Investigating Officer to explain as to why he did not believe the persons, who spoke about the presence of the petitioner on the spot at the time of the incident.
28. In my opinion, when the Investigating Officer had come to the conclusion that the involvement of the petitioner in the alleged offences was not disclosed, the Magistrate ought to have passed an appropriate order releasing the petitioner as contemplated under Section 169 of the Code. When, later, the report under Section 173 of the Code would have been filed by the police, he would have had the power and authority to decide whether or not the conclusion about non-involvement of the petitioner was acceptable and could have even proceeded against the petitioner, if satisfied about the existence of a prima facie case against her."
In the light of the above referred submissions, counsel for the applicants prays that the application is liable to be allowed.
On a perusal of the impugned order, it is clear that the Court below placed reliance on the statements given, and which forms part of the report furnished under Section 173 (2) CrPC, to form an opinion that the applicants were also liable to be summoned, which cannot be faulted with for the simple reason that the power to take cognizance of an offence close from Section 190 of the CrPC, which confers ample power on the Magistrate to take cognizance of an offence upon receiving a report. In the present case, a report before the Magistrate indicated the complicity of the applicants in the offence in question and no error can be found requiring interference of this Court in exercise of extraordinary powers under Section 482 CrPC.
The application u/s 482 Cr.P.C. lacks merit and is dismissed.
Order Date :- 19.3.2021
vinay
