Bhagwat And Another vs State Of U.P.And Another
2023 Latest Caselaw 36306 ALL

Allahabad High Court

Bhagwat And Another vs State Of U.P.And Another on 22 December, 2023

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:242585
 
Judgment reserve on 04.08.2023
 
Judgment delivered on 22.12.2023
 
In Chamber
 

 
Case :- CRIMINAL REVISION No. - 3861 of 2014
 

 
Revisionist :- Bhagwat And Another
 
Opposite Party :- State Of U.P.And Another
 
Counsel for Revisionist :- Rajiv Lochan Shukla,Manvendra Singh,Ravindra Sonkar
 
Counsel for Opposite Party :- Govt.Advocate,Rk Mishra
 

 
Hon'ble Ram Manohar Narayan Mishra,J.
 

1. By means of instant Criminal Revision the revisionist has assailed the order dated 22.11.2014 passed by learned Special Chief Judicial Magistrate, District Allahabd in Case No.181 of 2014, under Section 376 of I.P.C., Police Station Mauaima, District Allahabad, by the impugned order learned Special CJM has accepted the protest petition filed by defacto complainant against final report (closure report) submitted by the Investigating Officer after carrying out investigation in Case Crime No.491 of 2013, under Section 363, 366 IPC in favour of the accused persons.

2. Heard Sri Rajiv Lochan Shukla learned counsel for the revisionists, and Sri Deepak Kapoor, learned A.G.A. for the State.

3. Notice was issued to respondent No.2 (defacto complainant) and Sri R.K. Mishra, learned Advocate appearing on her behalf and file counter affidavit sworn by her husband.

4. Learned court below has dismissed the final report by impugned order and proceeded against revisionist for charge under Section 376 IPC. It is also directed therein that case will proceed as State case.

5. The brief facts leading to filing of present revision is that the informant is a married young women, lodged an FIR on 30.12.2013 on the basis of written report stating that on 26.11.2013 at about 5:00 pm she was alone in her house, the accused persons Bhagwat and Purshottam come to her door and asked for opening of the door. She came out of the house hearing their voice as they were acquainted to her since before. They used to come to her place to meet her husband. The accused persons asked to about husband and on being apprised that he was not at the home, they entered inside the home and bolted the door from inside, they grabbed her with bad intention and committed rape on her one by one by pointing a knife and keeping her in fear of death. They also abused and threatened her of dire consequences. She narrated the incident to her husband, who informed the police on next day, but her report was not lodged. She reported the matter to Senior Superintendent of Police, Allahabad by registered post on 02.12.2013, but no action was taken thereon, then she moved an application before the Special CJM on 05.12.2013 under Section 156(3) Cr.P.C. and on account of order passed by learned Magistrate, FIR was lodged under Section 376, 504, 506 of IPC on 30.12.2013. The Investigating Officer recorded statement of the victim and the witnesses under Section 161 Cr.P.C. did not find the FIR version believable. This fact also emerged during investigation that prior to lodging of FIR in the present case, an FIR was lodged at the instance of accused Bhagwat against Sanjay Patel, Jamuna Patel and Arti Patel on 10.10.2013 under Sections 363 and 366 of IPC, under Section 8 of POCSO Act with allegation that accused persons kidnapped his 16 years old sister who left the home without informing any one and did not come back. The police investigated the case and filed chargesheet against Jamuna Patel and Sanjay Patel for charge under Sections 363, 366, 376D IPC, Section 3/4 of POCSO Act and under Section 3(1)(12) SC/ST P.A. Act on 03.03.2014 and supplementary chargesheet was filed against Arti Patel on 04.03.2014.

5. According to Investigating Officer present case was lodged by the complainant as a counter blast of said case lodged at the instance of accused Bhagwat, with a view to create defence in said previous case interalia under Section 3/4 of POCSO Act.

6. Feeling aggrieved by the final report submitted by the Investigating Officer in favour of present accused persons. The defacto complainant filed protest petition before the court below with affidavit of witnesses Ved Prakash Pandey, Ram Kamaal, Nigam Chand as well as her own affidavit in support of FIR version and stated that she is not aware of the matter registered vide Crime No.481 of 2013, under POCSO and SC/ST (P.A.) Act; the Investigating Office did not record her statement under Section 161 Cr.P.C. nor her witnesses, she has supported her version before Magistrate in her statement under Section 164 Cr.P.C. The Investigating Officer wrongly submitted final report in favour of the accused persons, therefore the same be required.

7. Learned trial court placed reliance on protest petition filed by the complainant against final report, her statement recorded during investigation under Section 164 Cr.P.C. as well as the affidavit filed in support of the witness filed in support of the protest petition rejected the final report and accepted the protests petition filed by the complainant and summon the accused persons to face trial with direction that case will proceed as State case.

8. Learned counsel for the revisionist submitted that learned Magistrate, while considering the protest petition filed by respondent No.2 (defacto complainant) has placed reliance on the evidence submitted alongwith protest petition and after rejecting the final report has allowed the protest petition and summon the revisionists for facing trial treating it to be a State case. This procedure adopted by learned Magistrate is contrary to the provisions contained under Section 191 Cr.P.C. as if the material filed alongwith protest petition is to be relied upon then, the learned Magistrate, can only direct it to be treated as a complaint case and not as a State case.

9. Reliance has been placed upon a division bench judgment of this Court in the case of Pakhandu Vs. State of Uttar Pradesh reported in 2001 AllLJ 2798.

10. Learned A.G.A. submitted that in the counter affidavit filed on behalf of the complainant it is stated that the Court below has rightly allowed the protest petition after rejecting the final report submitted by police in the case and summon the revisionists to face trial for charge under Section 376 of IPC. The complainant side is unconcerned with Case Crime No.481 of 2013 under Sections 363 and 366 of IPC, and Section (8) of POCSO Act is wrong to so the respondent No.2 has lodged the present case against the revisionists to create pressure on them to compromise the case Crime No.481 of 2013. There is no infirmity in the impugned order passed by the learned court below.

11. He further submitted that the age of the victim was found above 18 years in her ossification test dated 16.01.2014. She was found pregnant during her medico legal examination, being a married woman she has narrated the incident of rape to lady doctor who conducted medico legal examination report of victim. On 26.1.2013 the doctor has recorded that no mark of injury any where on external body parts found. She is a married lady vaginal smear was found negative for spermatozoa or gonococi. She has supported the FIR version in her statement under Section 164 Cr.P.C. record during the investigation by Judicial Magistrate, wherein she has supported her FIR version and made acquisition of committing rape on her by present revisionists, by committing trespass in her house.

12. Learned counsel for the revisionists has placed reliance on judgment of Division Bench of this Court in Pakhandu Vs. State of Uttar Pradesh reported in (2001) AllLJ 2798, wherein this Court has observed as under:-

14. In the case of Tularam v. Kishore Singh AIR 1977 SC 2401, it was held that if the police, after making an investigation, sent 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 the case under Section 190(1)(b) on the basis of material collected during investigation and issue process or in the alternative he could take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he was of opinion that the case should be proceeded with.

15. From the aforesaid decisions, it is thus clear that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require :-

(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or

(II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

(III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or.

(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

16. 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 and 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.

18. It was observed as under in paragraph 37 :

Therefore, the question of complying with the proviso to Sub-section (2) of Section 202 would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry and secondly in such inquiry by him, if he decides to take evidence of witnesses on oath. But the object and purpose of holding inquiry or investigation under Section 202 is to find out whether there is sufficient ground for proceeding against the accused or not and that holding of inquiry or investigation is not an indispensable course before issue of process against the accused or dismissal of the complaint. It is an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath.

20. From the above it is absolutely clear that proviso to Sub-section (2) of Section 202 of the Code will apply only to a case where the Magistrate has taken cognizance under Section 190(1)(a) and has opted to hold inquiry under Section 202 after examining the complainant and witnesses present, if any, under Section 200, Cr.P.C.

22. 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. shall have no application. The contrary view expressed in Mohabbat Ali's case is not a correct proposition of law.

13. In the present case, learned Magistrate, while allowing the protest petition and rejecting the final report proceeded in the matter as State case by impugned order. The learned court below has placed reliance on affidavit of the complainant and witnesses filed in support of protest petition as well as placed reliance on statement of prosecutrix recorded under Section 164 Cr.P.C. Thus, the learned court below has taken into consideration the piece of evidence collected during investigation, this statement of the victim under Section 164 Cr.P.C. and extraneous matter in the form of affidavit of the complainant and witnesses accompanying the protest petition while passing the impugned order.

14. While applying the facts of this case to the law laid down by a Division Bench of this Court in paragraph No.16 of Pakhandu Vs. State of Uttar Pradesh (supra) it appears that the learned Magistrate decided to take cognizance of the case under Section 190(1)(b) of the Code ignoring the conclusions arrived at by the Investigating Agency and after applying his mind to statement of the victim recorded under Section 164 Cr.P.C. during the investigation as well as extraneous matter in the form of Statement, affidavit of victim and her witness filed in support of protest petition and final report. In Pakhandu Vs. State of U.P. (Supra) this court has observed that " it would however be relevant to mention that for forming such independent opinion the Magistrate can act only upon statements of witnesses recorded by the police in the case diary and 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."

15. Thus the procedure adopted by the learned Magistrate while passing the impugned order is not in consonance by the law laid down by the Hon'ble Supreme Court in Pakhandu Vs. State of Uttar Pradesh (supra). Therefore the impugned order is contrary to the provisions under Section 190 Cr.P.C. as well as the Judicial Authority of Pakhandu Vs. State of Uttar Pradesh (supra) cited above. The impugned order is not sustainable and deserves to be set-aside.

16. On the basis of foregoing discussions, the revision stands allowed. The impugned order dated 22.11.2014 is hereby set-aside. Learned court below is directed to pass fresh order in accordance with law on final report and protests petition after giving opportunity of hearing to the defacto complainant and the Public Prosecutor of the Court in light of the law laid down by this Court in Pakhandu Vs. State of Uttar Pradesh reported (supra) and in the light of observations made herein before preferably within a period of three months from the date of production of a certified copy of this order.

Order Date :- 22.12.2023

Ashish/-