Om Prakash Tiwari vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 16194 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 12
 
Case :- APPLICATION U/S 482 No. - 6668 of 2022
 
Applicant :- Om Prakash Tiwari
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrett. Lucknow And Others
 
Counsel for Applicant :- Rajiva Dubey,Pradeep Kumar Mishra
 
Counsel for Opposite Party :- G.A.,Shitla Prasad Tripathi,Shitla Prasad Tripathi
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Jyotindera Mishra, learned Senior Advocate assisted by Shri Rajiva Dubey, learned counsel for the applicant, Shri Shitla Prasad Tripathi, learned counsel for opposite party no.2 as well as learned A.G.A. for the State and perused the record.

The instant application under Section 482 Cr.P.C. has been filed by the applicant namely Om Prakash Tiwari with the prayer to quash the entire proceedings of Case No. 1806/2022 arising out of Case Crime No. 442/2019, under Section 376 I.P.C., Police Station Mohammadi, District Kheri, pending in the learned Court of Civil Judge (S.D.)/F.T.C., Lakhimpur Kheri "State vs. Om Prakash Tiwari" as well as summoning order dated 24.08.2022 and stay the further proceedings of the aforesaid case.

Learned Senior Counsel while drawing the attention of this Court towards the first information report, submits that the same has been lodged with ulterior motive as a counter blast of the F.I.R. lodged by the applicant registered as Case Crime No. 830/2010, under Sections 147, 148, 149, 307 and 504 I.P.C., Police Station Mohammadi, District Lakhimpur Kheri, against the opposite party no.3 and seven other co-accused persons.

It is further submitted that the opposite party no.3 is a notorious criminal and was a police constable in the Uttar Pradesh Police, however, he is having a long list of criminal cases lodged against him and in order to take revenge he had used opposite party no.2 as an instrument to lodge the instant F.I.R. against the applicant.

It is further submitted that the first information report lodged by the opposite party no.2 against the applicant was thoroughly investigated. After thorough investigation a final report/closure report has been filed by the investigating officer. However, on a protest petition filed by the opposite party no.2, the Judicial Magistrate, Lakhimpur Kheri was pleased to order for further investigation vide order dated 20.02.2021 and thereafter only on the basis of the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C. the charge-sheet against the applicant has been submitted and the trial court ignoring the earlier investigation had taken the cognizance without assigning acceptable and justifiable reasons.

Shri Jyotindera Mishra, learned Senior Counsel while drawing the attention of this Court towards the statement of independent witnesses namely Shri Dinesh Kumar Shukla, Shri Suresh Chandra, Shri Anil Kumar Mishra as well as of lady constable Jyoti Gautam, Hina Saini, vehemntly submits that the statement of these witnesses is sufficient to reveal that it is a case where the applicant has been framed by the opposite party no.2 and all acts have been done by the opposite party no.2 in furtherance of a well-designed conspiracy to falsely implicate the applicant.

Learned Senior Counsel has made various submissions with regard to the fact as to how the prosecutrix/opposite party no.2 was having the phone number of a Sub Inspector to whom she allegedly called as well as other submissions in order to project that the instant case is a false case.

It is also submitted that husband of the prosecutrix is in police service and as opposite party no.3 was also a police personnel, it is a case where revenge has been taken by the opposite party no.3 through opposite party no.2.

Shri Shitla Prasad Tripathi, learned counsel appearing for opposite party no.2 and 3 submits that the prosecutrix was called by the applicant at his residence situated at Mohalla Bazarganj, Town Mohammadi on 01.09.2019 on the pretext to examine the 'khatauni' obtained by the prosecutrix. However, she was again asked by the applicant to come on 08.09.2019 and when the prosecutrix arrived at the house of the applicant at 2:30 pm. he was alone and had given some noxious substance in the tea which he offered to her and started molesting the prosecutrix and as some noxious substance has been given to the prosecutrix she was not in a position to defend herself and thereafter the applicant had committed rape on the prosecutrix.

It is further submitted that the prosecutrix had also made a call to the informant of the case from her mobile phone and when the police had arrived at the house of the applicant, he was found naked.

It is further submitted that as the applicant is an influential person he managed to procure a closure report in the investigation despite the occurrence was supported by the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C. and there were other materials on the case diary in the form of call detail records which were fortifying the presence of the prosecutrix in the house of the applicant and, thus, the further investigation was ordered by the Magistrate and after thorough investigation the charge-sheet against the applicant has been filed and there is nothing illegal in submission of charge-sheet against the applicant nor in the order of the trial court whereby the cognizance has been taken and process has been issued against the applicant.

Learned A.G.A. has also supported the submissions of learned counsel appearing for opposite party no.2 and 3 and submits that the trial court has not committee any illegality in taking the cognizance or by the investigating officer in submission of the charge-sheet.

It is also submitted that the applicant is having a long criminal history of five cases.

Having heard learned counsel for the parties and having perused the record, in the first information report, the facts, as has been narrated by the prosecutrix reveals that specific allegation of commission of rape by the applicant on her has been stated. The allegation of rape by the applicant on prosecutrix has also been levelled when the prosecutrix was being medically examined as well as in the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C.. It is vehemently submitted on behalf of the prosecutrix/opposite party no.2 that when the police party arrives at the house of the applicant, the police party found the applicant as well as the prosecutrix in the house of the applicant.

There cannot be any dispute in the proposition that at the stage of taking cognizance and issuance of process a meticulous examination of the evidence is not required and only a primafacie material is required to be seen for further progress of the case.

In (2012)5 SCC 424 : AIR 2012 SC 1747, Bhushan Kumar and Anr v. State (NCT of Delhi) and Anr, the Apex Court has held that "13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued."

In (2015) 4 SCC 609 : AIR 2015 SC 923, Sunil Bharti Mittal v. Central Bureau of Investigation (Three Judges Bench) Hon,ble Apex Court held as under:

"53. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself...."

The provisions relating to the power of the police to investigate into offences and the procedure to be adopted by them are to be found in Chapter XII which falls under the heading 'Information to the Police and their powers to investigate'. Under Section 156 (1) of the Code an officer-in-charge of a police station may investigate any cognizable offence without any order of the Magistrate ,however this is not a case pertaining to non-cognizable cases, wherein without an order from a Magistrate specified in Section 155(2) no investigation can be made. Any Magistrate empowered under Section 190 may order, under Section 156 (3), before taking cognizance of offence, the police to investigate into a cognizable case. Section 157 prescribes the procedure to be followed by the officer-in-charge of a police-station when he has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate and in such an eventuality he will forthwith send a report of the same to a Magistrate, empowered to take cognizance of such offence upon a police report and proceed in person, or depute any one of his subordinate officers to investigate the case. No need to say that if there is sufficient material/ evidence against accused person(s) arrest of the offender may be made.Where the S.H.O. of a police station take a decision not to investigate an cognizable offence the Magistrate even then may direct the police to make an investigation under section 156(3) of the CrPC. Above mentioned provisions clearly demonstrate that scheme of the Code is that an investigation should take place into a cognizable offence and the investigation must be carried out and completed without delay. The investigation part is however left in entirety to the police and there is no scope of interference with the same.

Now come the next stage where after investigation the officer in charge of the police-station may find sufficient material against accused person(s) or may also not find sufficient material as the case may be. If sufficient evidence or reasonable grounds to justify the forwarding of the accused to a Magistrate have been found in investigation, such officer will forward the accused to a Magistrate empowered to take cognizance of the offence, under Section 170 of the Code. On the other side if it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground to forward the accused to a Magistrate,he by virtue of Section 169 of the Code will release the accused, if in custody, on his executing a bond, to appear, if and when required, before a Magistrate empowered to take cognizance of the offence. The aforesaid provisions however make it very clear that in either eventuality, after completion of the investigation, the officer in charge of the police station will have to submit a report under Section 173, to the Magistrate .It is worthwhile to recall here that nowhere in the Code expression 'charge-sheet' or 'final report' has been used and Section 173 of the Code talks only about a report to be submitted by the police after completion of the investigation.

In Darshan Singh Ram Kishan v. State of Maharashtra; MANU/SC/0089/1971 : (1971) 2 SCC 654, it was held that the process of taking cognizance does not involve any formal action, but it occurs as soon as the Magistrate applies his mind to the allegations and thereafter takes judicial notice of the offence:

"8. As provided by Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report."

In Kishun Singh and Ors. v. State of Bihar; MANU/SC/0460/1993 : (1993) 2 SCC 16, this Court reiterated the position that where, on application of mind, the allegations in the complaint, according to the Magistrate, if proved, would constitute an offence, cognizance is to be is taken of the offence so as to proceed further against the accused. To quote:

"7.... Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding Under Sections 200/204 of the Code."

In State of W.B. and Anr. v. Mohd. Khalid and Ors.; MANU/SC/0154/1995 : (1995) 1 SCC 684, it has been held by this Court that while exercising the power to take cognizance, a Magistrate has to see whether there is any basis for initiating judicial proceedings. At paragraph-43, it has been held as follows:

"43....Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons."

In Jagdish Ram v. State of Rajasthan and Anr.; MANU/SC/0196/2004 : (2004) 4 SCC 432, the law was restated,in the following way, holding that at the stage of issuing process to the accused, the Magistrate is not required to record reasons. However, he has to be satisfied that there is sufficient ground for proceeding and such satisfaction is not whether there is sufficient ground for conviction :-

"10.... The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."

In S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors. MANU/SC/7011/2008 : (2008) 2 SCC 492, it was held in the following paragraphs that taking cognizance has no esoteric or mystic significance in criminal law and it connotes that a judicial notice is taken of an offence, after application of mind :-

"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.

20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance."

In M/s. India Carat Pvt. Ltd. Vs. State of Karnataka; MANU/SC/0349/1989 : (1989) 2 SCC 132, Supreme Court has observed in para 16 of judgment that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion of making out a case against accused. Magistrate can ignore conclusion arrived at by Investigating Officer, independently applying his mind to the facts emergent from investigation and can take cognizance of case or in alternative he can take cognizance of original complaint and examine complainant and his witness and thereafter issue process to accused, if he is of opinion that the case should proceed. Following observations of Court fortify what is observed above:

"16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.

17. The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). It has been held in Tula Ram and others Vs. Kishore Singh MANU/SC/0163/1977 : 1978(1) SCR 615 that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with."

Supreme Court in Tula Ram Vs. Kishore Singh; MANU/SC/0163/1977 : AIR 1977 SC 2401 said that Magistrate can ignore a final report submitted by Police including the conclusion and take cognizance of case under Section 190(1)(b) on the basis of material collected during investigation and issue process, or in the alternative, he may take cognizance of original complaint, examine the complainant and his witnesses and thereafter issue process to accused, if he is of opinion that case should be proceeded with.Therefore even in the cases where the charge sheet has not been submitted and the final report is submitted, then also the Magistrate can at the time of taking cognizance entirely differ and disagree with the conclusion of the Investigating Officer. He can reject the final report as such and may summon all the accused persons named in the F.I.R if there is sufficient material available in the case diary against them to constitute the alleged offences whatever they are.Similar view has been expressed In Abhinandan Jha & others Vs. Dinesh Mishra, AIR 1968 SC 117: (1967) 3 SCR 668 ,H.S. Bains, Director Small Saving-Cum-Deputy Secretary Finance Punjab,Chandigarh Vs. State(Union Territory of Chandigarh) AIR 1980 SC 1883, Gangadhar Janardan Mhatre vs. State of Maharashtra and others MANU/SC/0830/2004 : 2004 (7) SCC 768, and Pakhandu and others Vs. State of U.P. and others( Allahabad High Court) 2001 Vol.43 ACC 1096.

In Minu Kumari and another Vs. State of Bihar and others; MANU/SC/8098/2006 : 2006 (4) SCC 359, Supreme Court said as under:

"11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (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 further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused."

In Mohammad Yusuf Vs. State of U.P.; MANU/UP/1097/2007: (2007)59 ACC 878: 2007 (9) ADJ 294, Hon'ble Supreme 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 investigating 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 Section 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 taking 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."

In the case of Nupur Talwar vs C.B.I. reported in MANU/SC/0488/2012: (2012)11 SCC 465, the Hon'ble Supreme Court has held as under :-

"10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued."

Hon'ble Supreme Court in a recent decision State of Gujrat Vs Afroz Mohammed Hasanfatta reported in 2019 SCC online SC 132 while considering the obligation of magistrate at the time of issuance of summons to the accused persons while taking cognizance of offences on a police report submitted under section 173 of the Code Of Criminal procedure, formulated following point and answered it as under :-

"While taking cognizance of an offence under Section 190(1) (b) Cr.P.C., whether the court has to record reasons for its satisfaction of sufficient grounds for issuance of summons:-

13. The charge sheet was filed in Criminal Case No.47715/2014 on 18.08.2014 against the accused persons namely Sunil Agrawal and Ratan Agrawal. In the first charge sheet, the respondent-Afroz Mohammad Hasanfatta (Afroz Hasanfatta) was referred to as a suspect. In the second supplementary charge sheet filed on 15.11.2014 in Criminal Case No.62851/2014, the respondent-Afroz is arraigned as accused No.1 and Amit @ Bilal Haroon Gilani as accused No.2. In the second supplementary charge sheet, prosecution relies upon the statement of witnesses as well as on certain bank transactions as to flow of money into the account of the respondent-Afroz Hasanfatta and his Company-Nile Trading Corporation. The order of taking cognizance of the second supplementary charge sheet and issuance of summons to the respondent-Afroz Hasanfatta reads as under:- "I take in consideration charge sheet/complaint for the offence of Section 420, 465, 467, 468 IPC etc. Summons to be issued against the accused."

14. The first and foremost contention of the respondent-accused is that summoning an accused is a serious matter and the summoning order must reflect that the Magistrate has applied his mind to the facts of the case and the law applicable thereto and in the present case, the order for issue of process without recording reasons was rightly set aside by the High Court. In support of their contention that the summoning order must record reasons showing application of mind, reliance was placed upon Pepsi Foods Ltd. The second limb of submission of the learned senior counsel appearing for the respondent-accused is that there has to be an order indicating the application of mind by the Magistrate as to the satisfaction that there are sufficient grounds to proceed against the accused irrespective of the fact that whether it is a charge sheet by the police or a private complaint.

15. It is well-settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well-settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused. Reliance was placed upon Bhushan Kumar and another v. State (NCT of Delhi) and another (2012) 5 SCC 424 wherein it was held as under:-

"11. In Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492 (SCC p. 499, para 19) the expression "cognizance" was explained by this Court as "it merely means 'become aware of' and when used with reference to a court or a Judge, it connotes 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.

12. A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.

13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued." [underlining added]

After referring to Bhushan Kumar, Videocon International Limited and other decisions, in Mehmood Ul Rehman v. Khazir Mohammad Tunda and others (2015) 12 SCC 420, it was held as under:-

"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others (1998) 5 SCC 749 to set in motion the process of criminal law against a person is a serious matter."

The above observations made in para (20) is in the context of taking cognizance of a complaint. As per definition under Section 2(d) Cr.P.C., complaint does not include a police report.

17. The learned senior counsel appearing for the respondent accused relied upon various judgments to contend that while taking cognizance, the court has to record the reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. The learned senior counsel appearing on behalf of the respondent-accused relied upon judgments in the case of Pepsi Foods Ltd. and Mehmood Ul Rehman to contend that while taking cognizance, the Court has to record reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the 12 accused for that offence. On the facts and circumstances of those cases, this Court held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. However, what needs to be understood is that those cases relate to issuance of process taking cognizance of offences based on the complaint. Be it noted that as per the definition under Section 2(d) Cr.P.C, 'complaint' does not include a police report. Those cases do not relate to taking of cognizance upon a police report under Section 190(1)(b) Cr.P.C. Those cases relate to taking cognizance of offences based on the complaint. In fact, it was also observed in the case of Mehmood Ul Rehman that "under Section 190(1)(b) Cr.P.C., the Magistrate has the advantage of a police report; but under Section 190(1)(a) Cr.P.C., he has only a complaint before him. Hence, the code specifies that "a complaint of facts which constitutes an offence".

18. Section 190(1)(a) Cr.P.C. provides for cognizance of complaint. Section 190(1)(b) Cr.P.C. deals with taking cognizance of any offence on the basis of police report under Section 173(2) Cr.P.C. Complaint is defined in Section 2(d) Cr.P.C. which reads as under:-

"2. Definitions. ??. (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has 13 committed an offence, but does not include a police report."

The procedure for taking cognizance upon complaint has been provided under Chapter XV ? Complaints to Magistrates under Sections 200 to 203 Cr.P.C. A complaint filed before the Magistrate may be dismissed under Section 203 Cr.P.C. if the Magistrate is of the opinion that there is no sufficient ground for proceeding and in every such case, he shall briefly record his reasons for so doing. If a complaint is not dismissed under Section 203 Cr.P.C., the Magistrate issues process under Section 204 Cr.P.C. Section 204 Cr.P.C. is in a separate chapter i.e. Chapter XVI ? Commencement of Proceedings before Magistrates. A combined reading of Section 203 and Section 204 Cr.P.C. shows that for dismissal of a complaint, reasons should be recorded. The procedure for trial of warrant cases is provided in Chapter XIX ? Trial of Warrant Cases by the Magistrates. Chapter XIX deals with two types of cases ? A ? Cases instituted on a police report and B ? Cases instituted otherwise than on police report. In the present case, cognizance has been taken on the basis of police report.

19. In a case instituted on a police report, in warrant cases, under Section 239 Cr.P.C., upon considering the police report and the documents filed along with it under Section 173 Cr.P.C., the Magistrate after affording opportunity of hearing to both the accused and the prosecution, shall discharge the accused, if the Magistrate considers the charge against the accused to be groundless and record his reasons for so doing. Then comes Chapter XIX-C ? Conclusion of trial - the Magistrate to rendering final judgment under Section 248 Cr.P.C. considering the various provisions and pointing out three stages of the case. Observing that there is no requirement of recording reasons for issuance of process under Section 204 Cr.P.C., in Raj Kumar Agarwal v. State of U.P. and another 1999 Cr.LJ 4101, Justice B.K. Rathi, the learned Single Judge of the Allahabad High Court held as under:-

"....As such there are three stages of a case. The first is under Section 204 Cr. P.C. at the time of issue of process, the second is under Section 239 Cr. P.C. before framing of the charge and the third is after recording the entire evidence of the prosecution and the defence. The question is whether the Magistrate is required to scrutinise the evidence at all the three stages and record reasons of his satisfaction. If this view is taken, it will make speedy disposal a dream. In my opinion the consideration of merits and evidence at all the three stages is different. At the stage of issue of process under Section 204 Cr. P.C. detailed enquiry regarding the merit and demerit of the cases is not required. The fact that after investigation of the case, the police has submitted the charge sheet, may be considered as sufficient ground for proceeding at the stage of issue of process under Section 204 Cr. PC., however subject to the condition that at this stage the Magistrate should examine whether the complaint is barred under any law, ??? At the stage of Section 204 Cr. P.C. if the complaint is not found barred under any law, the evidence is not required to be considered nor the reasons are required to be recorded. At the stage of charge under Section 239 or 240 Cr. P.C. the evidence may be considered very briefly, though at that stage also, the Magistrate is not required to meticulously examine and to evaluate the evidence and to record detailed reasons.

8. A bare reading of Sections 203 and 204 Cr.P.C. shows that Section 203 Cr.P.C. requires that reasons should be recorded for the dismissal of the complaint. Contrary to it, there is no such' requirement under Section 204 Cr.P.C. Therefore, the order for issue of process in this case without recording reasons, does not suffer from any illegality." [underlining added]

We fully endorse the above view taken by the learned Judge.

20. . In para (21) of Mehmood Ali Rehman, this Court has made a fine distinction between taking cognizance based upon charge sheet filed by the police under Section 190(1)(b) Cr.P.C. and a private complaint under Section 190(1)(a) Cr.P.C. and held as under:-

"21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected."

21 . In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient ground for proceeding?.."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming 16 that the accused has committed an offence?..". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.

22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file." (Emphasis Mine)

So far as submission of Ld senior Counsel with regard to the order passed by the Magistrate for doing further investigation is concerned, the same is not the subject matter of these proceedings as after further investigation a charge sheet has already been submitted. However it may be recalled that Section 190 of the Crpc, which deals with taking cognizance of offences by Magistrate, sets out that any Magistrate of the first Class and any Magistrate of the second class specially empowered, as contemplated, may take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence or (b) upon a police report of such facts or upon information received from any person other than the police officer, or (c) upon his own knowledge that such offence had been committed. Instant case is related to section 190 (b) i.e. police report. The word 'may' occurred in section 190 imports the exercise of judicial discretion and the Magistrate receiving the report under Section 173 would have to consider the report and decide judicially whether or not to take cognizance of the offence and as discussed earlier where the report states that, according to the police, no offence appears to have been committed the Magistrate has option of adopting one of the three courses open to him i.e., (1) he may accept the report and drop the proceeding( in this case he will have to inform victim/ informant ); or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). However, where the police report concludes that an offence appears to have been committed by particular person or persons and in such a case, he may (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding( in this case he will have to inform victim/ informant ), or (3) before taking offence may direct further investigation under Section 156(3) and require the police to make a further report. If after taking into consideration material placed with the 'Charge Sheet' there is sufficient ground for proceeding against the persons named in the Charge Sheet the processes may be issued against them under Section 204 Cr.P.C. Thus having regard to the above proposition of law no illegality appears to have committed by the magistrate in ordering further investigation.

Perusal of the facts of the instant case in the background of the aforesaid legal proposition are sufficient to reveal that it is alleged in the F.I.R. that the prosecutrix was called by the applicant at his residence situated at Mohalla Bazarganj, Town Mohammadi on 01.09.2019 on the pretext to examine the 'khatauni' obtained by the prosecutrix. However applicant again asked her to come on 08.09.2019 and when she arrived at the house of the applicant on that day at 2:30 p.m. she found him alone in his house and he gave some noxious substance to her in tea which he offered and started molesting the prosecutrix. It is further stated that she was not in a position to defend herself as she was under the influence of noxious substance given to her by the applicant and thereafter the applicant had committed rape on the prosecutrix. It is also stated in the FIR and in the statements of the victim that the prosecutrix had also made a phone call to the informant of the case from her mobile phone and when the police arrived at the house of the applicant, he was found naked. Though Ld senior counsel has referred to the statement of some persons in order to show that the Lungi( under cloth) of the applicant was snatched by the victim in order to make him naked in pursuance of a conspiracy, but this is not a stage where disputed defence of the accused may be appreciated by this Court as it would be for the Trial Court to appreciate it at an appropriate stage.

It is further to be recalled that the allegations of FIR pertaining to the Rape committed by the applicant with victim has been supported by the prosecutrix with her statements recorded under Section 161 and 164 Cr.P.C. and other material has also been collected by the Investigating Officer which has been made part and parcel of the case diary in the form of call detail records. The presence of the prosecutrix in the house of the applicant at the time of incident has also not been disputed. The evidentiary value of the statements of the victim of the sexual assault is 'akin' to the testimony of an injured witness.

In summoning the accused, it is not necessary for the Magistrate to meticulously examine the merits and demerits of the case in order to assess the sufficiency of the material for the conviction. The court is not required to evaluate the evidence and its merits. At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. As propounded by Supreme Court in State of Gujrat Vs Afroz Mohammed Hasanfatta (supra), the fact that after investigation of the case, the police has filed charge sheet along with the materials thereon which prima facie attracts the ingredients of the charged offences may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C. In cases instituted on a police report, the Magistrate is only required to pass an order of issuing summons to the accused on the basis of his subjective satisfaction considering the police report and other material after satisfying himself that there is sufficient ground for proceeding against the accused.

Having regard to all the facts and circumstances of the case and for the reasons and Law mentioned herein-before, I do not find any illegality or to say any irregularity in the orders, whereby the trial court has taken the cognizance and issued process against the applicant or in submission of Charge Sheet.

The application in the considered opinion of this Court appears to be devoid of merits and is hereby, dismissed as such.

Order Date: 09.11.2022.

Praveen