Raj Kumar Singh And Another vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 18231 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- APPLICATION U/S 482 No. - 8500 of 2022
 

 
Applicant :- Raj Kumar Singh And Another
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Lko And Others
 
Counsel for Applicant :- Vishal Dixit,Kamlesh Kumar,Saloni Jaiswal
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Vishal Dixit, learned counsel for the applicants as well as learned AGA for opposite parties no. 1 and 2 and perused the record.

By filing instant application under Section 482 Cr.P.C. the applicants/ accused persons- Raj Kumar Singh and Anita Raj have requested to quash the supplementary charge sheet filed against them in Case Crime No.50913 of 2021, under Sections 498-A, 304-B, 506, 507, 312 IPC and under Sections 3, 4 of Dowry Prohibition Act, 1961, Police Station Sushant Golf City, Lucknow as well as summoning order dated 25.5.2022 passed by the Chief Judicial Magistrate, Lucknow.

Learned counsel for the applicants while referring to the First Information Report and the first charge sheet against the husband and one Vikas, vehemently submits that during the course of investigation before submission of charge sheet against these two persons no role of the applicants was found in the commission of the crime and it was thereafter the Investigating Officer appears to have shown culpability of the applicants, however, the applicants have cooperated in the investigation and had made available to the Investigating Officer all the documents which were successfully showing the presence of applicants specifically of applicant no.1 that he could not be present at the place of occurrence, moreover general allegations of demand of dowry and committing cruelty in lieu thereof has been levelled in the First Information Report.

Learned counsel for the applicants had drawn attention of this Court towards the inquest report wherein Panch witnesses have stated that the death of deceased has occurred in road traffic accident and postmortem report wherein crushed, lacerated and contused injuries were shown and thus he vehemently submits that the deceased unfortunately died due to injuries sustained in road traffic accident.

Learned counsel for the applicants in support of his contentions and submissions has relied on judgment of Hon'ble Supreme Court dated 11.10.2022 passed in Criminal Appeal No. 1757 of 2022 arising out of SLP (Crl) No. 8882/2015 Lalan Kumar Singh and others Vs. State of Maharashtra as well as judgment dated 14.12.2021 passed in Criminal Appeal No. 1628 of 2021, arising out of SLP (Crl.) No.27 86/2019 in Mirza Iqbal @ Golu and another Vs. State of U.P. and another.

Learned counsel for the applicants has also placed reliance on the additional statement of the informant recorded by the Investigating Officer on 20.3.2021, wherein it is stated that at the time of the marriage no dowry was given to the deceased as the marriage was solemnized during the period of lock down pertaining to the Covid 19 pandemic and the information of the miscarriage due to the physical assault given to the deceased was provided by her through whatsapp and she had not informed about any opinion taken from any doctor and also that no complaint to any authority was given earlier by deceased with regard to the alleged demand of dowry and committing cruelty by the accused persons, in lieu thereof.

It is also submitted that it is not only investigating Officer who has materially erred in submitting the charge sheet but the trial court has also not considered the material submitted to it by the Investigating Officer in right perspective and has passed summoning order without giving specific reason and without considering the role of each of the applicants while admittedly the two applicants are parents-in-law of the deceased, thus submission of the charge sheet as well as taking of cognizance and all the proceedings pending before the trial court are nothing but the abuse of process of law and the same be quashed.

Learned AGA on the other hand submits that in the first charge sheet filed against the husband and one another relative of husband namely Vikas it was specifically mentioned that investigation with regard to the other co-accused persons is pending. The perusal of supplementary charge sheet which was filed against the applicants is sufficient to demonstrate that the defence of the applicants specifically that of applicant no.1 has been taken into consideration by the Investigating Officer and thereafter the charge sheet has been submitted by the Investigating Officer and keeping in view Section 113(B) of the Indian Evidence Act there appears no illegality in the order of summoning as there was sufficient material to proceed further in the trial.

It is also submitted that at the stage of taking cognizance and issuance of summons meticulous examination of material is not required and only prima facie case is to be seen for further proceedings.

Having heard learned counsel for the parties and having perused the record and keeping in view the order intended to be passed the issuance of notice on opposite party no.3 is hereby dispensed with.

Having heard learned counsel for the parties and having perused the record, it is evident that in the First Information Report allegations of committing cruelty with the deceased in lieu of demand of dowry have been alleged against all the accused persons named in the FIR, however, no specific role has been assigned to each accused person. No other statement of the informant or any of the prosecution witness has been produced on record by the applicants. Perusal of the first charge sheet which was filed against the husband of the deceased, namely, Richi and another accused person Vikas would reveal that charge sheet was submitted against them and the investigation was kept pending with regard to the instant applicants and other accused persons. Perusal of the charge sheet filed against the instant applicants would reveal that the investigation was also done taking into consideration an application moved by the applicant no.1- Raj Kumar Singh and thereafter the Investigating Officer after recording the statement of the informant and other prosecution witnesses and also the CCTV footage and whats-app chat had submitted the charge sheet against the applicants and one other accused person. It is also evident that while submitting the charge sheet against the applicant the Investigating Officer has taken into consideration the whats-app chat which appears to have been retrieved from the phone of the deceased.

During the course of deliberation, it is vehemently submitted by learned counsel for the applicants that the death of the deceased is an accidental death and also that at the time of death the husband was with the deceased, however, it is also admitted by him that while deceased had sustained multiple injuries, the husband has not sustained any injury due to the seat which he has occupied in the vehicle. Reliance has also been placed on the inquest report prepared under Section 174 Cr.P.C. The post mortem report of the deceased would reveal that she had sustained as many as 16 injuries of the nature of crushed, lacerated, contusions and abraded contusions etc. The doctor after conducting the postmortem has opined that the death of the deceased has been caused due to shock and hemorrhage as a result of ante-mortem injuries. Evidently there is no opinion of the doctor with regard to the causing of death of the deceased in a road traffic accident. The opinion of the 'Panch Witnesses' in the inquest report is prima facie opinion as admittedly incident had not occurred before the Panch witnesses and even as per the own admission of the applicants the husband is the only witness of the same. Thus, even if there is contradiction between the injuries and postmortem report the weightage is required to be given to the postmortem report.

Now coming to the submission of learned counsel for the applicants that the trial court has not applied its judicial mind while passing the summoning order. Perusal of the summoning order would reveal that the trial court has considered the police report as well as the material submitted there with and has taken cognizance and issued process. Learned counsel for the applicants has relied on the two judgments of the Hon'ble Supreme Court Lalan Kumar Singh (supra) and Mirza Iqbal @ Golu (supra) so far as the first case pertaining to Lalan Kumar Singh is concerned it is with regard to the vicarious liability of the Director of the Company and in this scenario the Hon'ble Supreme Court opined that it was the duty of the Magistrate while taking cognizance and issuing process to determine the role each and every accused. So far as the second case relied on by learned counsel for the applicants, namely, Mirza Iqbal @ Golu (supra) is concerned the Hon'ble Supreme Court has quoted with authority an observation made in Geeta Mehrotra and another Vs. State of U.P., the relevant observations of Hon'ble Supreme Court are quoted here under:-

"However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasise by highlighting is that, if the FIR as it stands does not disclose specific allegation against the accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant wife. It is the well-settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of process of law.

Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing, especially in cases of matrimonial disputes whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima SLP(Crl.) No. 2786 of 2019 facie discloses a case of overimplication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.

12. From a perusal of the complaint filed by the 2 nd respondent and the final report filed by the police under Section 173(2) of Cr.P.C., We are of the view that the aforesaid judgment fully supports the case of the appellants. Even in the counter affidavits filed on behalf of respondent nos.1 and 2, it is not disputed that the 1st appellant was working in ICICI Bank at Khalilabad branch, but merely stated that there was a possibility to reach Gorakhpur by 8 p.m. Though there is an allegation of causing injuries, there are no other external injuries noticed in the postmortem certificate, except the single ante-mortem injury i.e. ligature mark around the neck, and the cause of death is shown as asphyxia. Having regard to the case of the appellants and the material placed on record, we are of the considered view that except vague and bald allegations against the appellants, there are no specific allegations disclosing the involvement of the appellants to prosecute them for SLP(Crl.) No. 2786 of 2019 the offences alleged. In view of the judgment of this Court in the case of Geeta Mehrotra and Anr.1, which squarely applies to the case of the appellants, we are of the view that it is a fit case to quash the proceedings."

Having considered all the facts and circumstances of this case, it is evident that as per the informant and prosecution witnesses the deceased has been done to death within 7 years of her marriage in lieu of demand of dowry and soon before her death she was subjected to cruelty. The accused/applicants before this Court are challenging the death of the deceased by claiming that the same had occurred in a road traffic accident. Admittedly and keeping in view the various pronouncements of the Hon'ble Supreme Court this disputed question of fact cannot be decided in the proceeding under Section 482 Cr.P.C. or even proceedings under Article 226 of the Constitution of India as the same is an area earmarked for the trial court. Secondly at the stage of summoning a prima facie case is to be seen and it is not obligatory on the Magistrate to pass a very detailed order specially in the case wherein charge sheet has been filed by the police after investigation. In this regard the following observation of the Hon'ble Supreme Court made in State of Gujrat Vs Afroz Mohammed Hasanfatta reported in MANU/SC/0139/2019 may be quoted 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 MANU/SC/0297/2012 : (2012) 5 SCC 424 wherein it was held as under:-

"11. In Chief Enforcement Officer v. Videocon International Ltd. MANU/SC/7011/2008 : (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."

16. After referring to Bhushan Kumar, Videocon International Limited and other decisions, in Mehmood Ul Rehman v. Khazir Mohammad Tunda and others MANU/SC/0374/2015 : (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 MANU/SC/1090/1998 : (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 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 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 MANU/UP/1095/1999 : 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. renquires 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."

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 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."

It is to be recalled that every criminal case is having its own favour and no straight jacket formula could be adopted or formulated for application in each and very criminal case as each criminal case is to be decided on its own the peculiar facts and circumstances, but one thing is certain that disputed questions of fact could not be adjudicated by this Court in the proceedings under Section 482 Cr.P.C. and the same could be appreciated by the trial court during the course of trial.

Having perused the order whereby the cognizance has been taken and the process has been issued in the considered opinion of this Court and keeping in view the material collected by the Investigating Officer a substance of which has been mentioned in the charge sheet, no illegality appears in the summoning order. Thus, for the reasons and the law mentioned herein before, I do not find any illegality in submission of charge sheet or taking of cognizance by the Magistrate and also in issuance of process against the applicants. The defence of the accused including the plea of alibi may be taken care of during the course of trial and there is nothing in this case which may persuade this case to quash the proceedings pending before the trial court.

Thus, keeping in view all the facts and circumstances mentioned herein above, I do not find any substance in the application and the same is hereby dismissed.

Order Date :- 22.11.2022

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