Sadab vs State Of U.P. And Another
2023 Latest Caselaw 2880 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 84
 

 
Case :- APPLICATION U/S 482 No. - 29523 of 2022
 

 
Applicant :- Sadab
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Akhilesh Kumar Mishra
 
Counsel for Opposite Party :- G.A.,Syed Shahnawaz Shah
 

 
Hon'ble Sameer Jain,J.

1. Heard Sri Akhilesh Kumar Mishra, learned counsel for the applicant, Sri Syed Shahnawaz Shah, learned counsel for the opposite party no.2 and Sri Varun Kumar Agnihotri, learned Brief Holder for the State.

2. By way of present application, applicant made a prayer to quash the order dated 10.01.2022 passed by Civil Judge Junior Division FTC-II/Judicial Magistrate, Hapur passed in Case No. 14536 of 2021 arising out of Case Crime No. 264 of 2021, under Sections 498A, 323, 506, 376 IPC, Police Station Dhaulana, District Hapur by which, Magistrate summoned the applicant under Section 376 IPC too in spite of the fact that charge-sheet was submitted against him only under Sections 498A, 323, 506 IPC.

Factual Matrix

3.1 Applicant is brother-in-law (Devar) of opposite party no.2. On 29.06.2021 opposite party no.2 lodged FIR of the present case under Section 376, 323, 506, 498A IPC and ¾ The Muslim Women (Protection of Rights on Marriage) Act, 2019 at Police Station Dhaulana, District Hapur at Case Crime No. 0264 of 2021 against applicant and others including her husband and mother-in-law.

3.2 According to the FIR on 27.06.2021 at about 11 PM applicant entered into the room of opposite party no.2 and on the point of knife he committed rape with her in absence of her husband and when she made complaint with her husband and his family members then they along with the applicant assaulted her. It is further alleged in the FIR that the husband of opposite party no.2 also verbally gave her triple talaq.

3.3 After registration of the FIR, investigation was commenced and during investigation the statement of opposite party no.2, the victim of the case, was recorded under Section 161 Cr.P.C. and 164 Cr.P.C. and in both the statements she reiterated the version of the FIR and stated that applicant i.e. her brother-in-law (Devar) on 27.06.2021 at about 11 PM on the point of knife committed rape with her in her room in the absence of her husband.

3.4 Therefore, in the FIR as well as in the statements of victim (opposite party no.2) recorded under Section 161 Cr.P.C. and 164 Cr.P.C. there is allegation that applicant on 27.06.221 at about 11 PM on the point of knife committed rape with her.

3.5 During investigation, Investigating Officer recorded the statements of some other witnesses and thereafter on 28.11.2021 submitted charge-sheet against the applicant and other accused persons. The charge-sheet was filed against the applicant under Sections 323, 506, 498A IPC and no charge-sheet was filed against him under Section 376 IPC.

3.6 After submission of the charge-sheet, opposite party no.2, the informant and victim of the present case on 18.12.2021, moved an application before the Magistrate concerned with a prayer that in view of the FIR and her statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. applicant should also be summoned under Section 376 IPC. On 10.01.2022, learned Magistrate allowed the application moved by opposite party no.2 and after taking cognizance summoned the applicant under Sections 498A, 323, 506, 376 IPC. Thus, learned Magistrate also summoned applicant under Section 376 IPC along with other offences although charge-sheet was not filed against him under Section 376 IPC.

3.7 Hence, the present application.

Submission on behalf of the applicant

4. Learned counsel for the applicant submits that the order dated 10.01.2022 passed by the Magistrate is illegal and without jurisdiction and he was not having any authority to either add or subtract any section in the charge-sheet. He placed reliance on the judgment of the Apex Court passed in the case of State of Gujarat Vs. Girish Radhakrishnan Varde (2014) 3 SCC 659 and submitted that in view of the law laid down by the Apex Court in the case of Girish Radhakrishnan Varde (supra) applicant cannot be summoned under Section 376 IPC as no charge-sheet was filed against him under Section 376 IPC. He further submits, in view of the law laid down in Girish Radhakrishnan Varde case (supra), only at the time of framing of charge Magistrate can evaluate the evidence available on record whether any offence under Section 376 IPC against the applicant is made out and not at the time of taking cognizance.

5. Learned counsel for the applicant also placed reliance on the judgment of the co-ordinate Bench of this Court passed in the case of Smt. Shalini Kashyap and another Vs. State of U.P. and others passed in Application U/S 482 No. 23830 of 2021 and submitted that after relying the judgment of the Apex Court in case of Girish Radhakrishnan Varde (supra), the co-ordinate Bench of this Court observed that Magistrate has committed error by adding section at the time of taking cognizance as well as by the revisional court.

6. He next submits, as Magistrate at the time of taking cognizance added Section 376 IPC and also took cognizance of offence under Section 376 IPC in spite of the fact that no charge-sheet was filed against the applicant under Section 376 IPC, therefore, in view of law laid down by the Apex Court in the case of Girish Radhakrishnan Varde (supra) and this Court in the case of Smt. Shalini Kashyap (supra), committed grave illegality. Thus, impugned order dated 10.01.2022 is illegal and is therefore liable to be set aside.

Submission advanced on behalf of the prosecution

7. Per contra, learned Brief Holder for the State and learned counsel for the opposite party no.2 opposed the submission advanced by learned counsel for the applicant and submitted that no illegality was committed by the Magistrate while passing the impugned order dated 10.01.2022. Both the counsels submitted that Magistrate is not a silent spectator and law by far is settled that Magistrate can disagree with the police report and on the basis of material available before him, he can even take cognizance for those offences, in which, charge-sheet was not submitted if from the police report such offences disclose.

8. Learned counsel for the opposite party no.2 placed reliance on the judgment of the Constitution Bench of the Apex Court in the case of Dharam Pal and others Vs. State of Haryana and another (2014) 3 SCC 306 and Nahar Singh Vs. State of Uttar Pradesh and another 2022 Cri. L.J. 1787 (SC) and submitted that as in the case of Dharam Pal (supra) Constitution Bench clearly observed that even if after investigation final report is submitted in favour of an accused but if Magistrate after perusal of the record finds that material is available against the accused, then he can also summoned him after taking cognizance, therefore, if Magistrate is empowered to summon the person against whom charge-sheet is not even submitted then it cannot be said that Magistrate cannot take cognizance for the offence, in which, charge-sheet has not been submitted if after perusing the record, it appears to him accused also committed such offence. The power of the Magistrate cannot be restricted only up to offences in which charge-sheet was submitted.

9. He further submits that in case of Nahar Singh (supra), the Apex Court again reiterated the law after considering the judgment of the Constitution Bench of the Apex Court passed in Dharam Pal case (supra) and observed that even if a person is not having any place in the police report submitted under Section 173(2) Cr.P.C. but if after perusal of the material collected by the Investigating Officer during investigation, Magistrate arrives at the conclusion that against him also there is material to issue summons then after taking cognizance he can issue summons to him too, therefore, from the law laid down by the Apex Court in the case of Dharam Pal (supra) and Nahar Sing (supra), it is evident that Magistrate has ample power even to take cognizance for the offences in which, charge-sheet was not submitted and can summon the accused in the added section, therefore, impugned order dated 10.01.2022 cannot be said to be illegal and instant application is liable to be dismissed.

Analysis

10. The core issue in the present application is that whether Magistrate is empowered to add any section at the time of taking cognizance and can issue summons to accused for such offence along with the offence mentioned in the charge-sheet.

11. The power of the Magistrate to take cognizance is prescribed under Section 190 Cr.P.C., which reads as:-

"190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try."

12. According to Section 190(1)(b) Cr.P.C. a Magistrate is empowered to take cognizance of any offence upon a police report of such facts. Therefore, prima facie from the perusal of the Section 190(1)(b) Cr.P.C. it appears that Magistrate can take cognizance of "any offence" upon a police report submitted under Section 173(2) Cr.P.C.

13. The question with regard to power to take cognizance by a Magistrate has come up before the Apex Court in the case of Minu Kumari and another Vs. State of Bihar and others (2006) 4 SCC 356 and the Apex Court observed as:-

"11. .......... 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."

14. The Apex Court in case of Ajay Kumar Parmar Vs. State of Rajasthan (2012) 12 SCC 406 with regard to power of the Magistrate under Section 190 Cr.P.C. observed as:-

"18. .......The scheme of the Code simply provides that the Magistrate can determine, whether the facts stated in the report make out an offence triable exclusively, by the Court of Sessions. Once he reaches the conclusion that the facts alleged in the report, make out an offence triable exclusively by the Court of Sessions, he must commit the case to the Sessions Court."

15. Therefore, from the above authorities of the Apex Court, it appears that Magistrate is having authority to disagree with the police report and if from the perusal of the report submitted under Section 173(2) Cr.P.C. he arrives at the conclusion that an offence exclusively triable by the court of session is made out against the accused then he can commit the case to the Sessions Court after taking cognizance and Magistrate is not bound by the police report submitted under Section 173(2) Cr.P.C. Magistrate can ignore the conclusion arrived at by the Investigation Officer and he should apply his mind independently to the facts emerging from the investigation.

16. Further, the phrase "any offence" used in Section 190 (1) Cr.P.C. is significant. It implies that Magistrate can even take cognizance of the offence exclusively triable by the sessions court. As per section 190(1)(b) Cr.P.C. Magistrate can take cognizance of any offence upon a police report of such facts, therefore, as per Section 190(1)(b) Cr.P.C. if after perusal of the police report submitted under Section 173(2) Cr.P.C Magistrate arrives at the conclusion that an offence exclusively triable by the court of sessions is made out against an accused then he can take the cognizance of such offence and commit the case to the court of sessions even if no charge-sheet was submitted against the accused in such offence.

17. The Apex Court in the case of Balveer Singh and another Vs. State of Rajasthan and another (2016) 6 SCC 680 also observed as:-

"13. A bare reading of Section 190 of the Code which uses the expression "any offence" amply shows that no restriction is imposed on the Magistrate that Magistrate can take cognizance only for the offence triable by Magistrate Court and not in respect of offence triable by a Court of Session. Thus, he has the power to take cognizance of an offence which is triable by the Court of Session."

18. Therefore, in view of Balveer Singh case (supra) too, the Magistrate is having all the authority to take cognizance of an offence which is exclusively triable by the court of sessions if after perusal of police report i.e. charge-sheet he arrives at the conclusion that such offence also made out against the accused.

19. The power to take cognizance of a Magistrate under Section 190 Cr.P.C. was exclusively discussed and dealt with by the Constitution Bench of the Apex Court in the case of Dharam Pal (supra), though the matter before Constitution Bench of the Apex Court was little bit different with regard to proceed against a person against whom charge-sheet was not submitted but Constitution Bench of the Apex Court analysed the power of the Magistrate under Section 190 Cr.P.C. very elaborately and observed that even if charge-sheet was not submitted against an accused and his name disclosed in column 2 to the charge-sheet, then also Magistrate can proceed against him if there is material against him in the police report submitted under Section 173(2) Cr.P.C. and Magistrate after taking cognizance can commit the case. The Constitution Bench of the Apex Court with regard to power of the Magistrate under Section 190(1)(b) Cr.P.C. observed as:-

"35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter."

20. Therefore, from the Constitution Bench judgment of the Apex Court passed in the case of Dharam Pal (supra), it is evident that Magistrate may proceed against a person whose name was disclosed in column 2 to the police report i.e. charge-sheet and against whom charge-sheet was not filed if in view of the Magistrate material collected by the Investigating Officer during investigation prima facie discloses that he committed such offence. Therefore, if a Magistrate can proceed against a person against whom charge-sheet has not been filed then it cannot be said that Magistrate is not empowered to take cognizance of an offence, in which, charge-sheet was not submitted although from the police report, such offence also discloses.

21. We can analyse the situation from different angle too, if Magistrate is not empowered to take cognizance for offences, in which charge-sheet was not submitted including the offence triable by court of sessions and charge-sheet was submitted only in offences, which are triable by the Magistrate (as the present case) then Magistrate will have to wait till framing of charges even if police report discloses offence also exclusively triable by sessions court and only at the time of framing of charges case would be committed to the court of session as police report also disclosed offence exclusively triable by sessions court. Therefore, in such case ultimately the case has to commit before court of sessions and for that purpose Magistrate will have to wait till framing of charges, it appears to be improper as if police report disclosed such offences even at the time of taking cognizance then why Magistrate should wait till framing of charges. This will also waste the valuable time of the court, therefore, from this point of view too, in my considered view, Magistrate should not wait till framing of charges and if at the time of taking cognizance he arrives at the conclusion that from the perusal of the police report submitted under Section 173(2) Cr.P.C. it appears that accused also committed an offence triable by the court of sessions then he can take cognizance for such offence and commit the case to the court of sessions.

22. The Supreme Court in the case of Nahar Singh (supra) also after discussing the judgment of the Constitution Bench of the Apex Court in case of Dharam Pal (supra) observed that even if a person has not been nominated in the charge-sheet i.e. police report submitted under Section 173(2) Cr.P.C. but if Magistrate after perusal of the report arrives at the conclusion that against him an offence is made out then he can take cognizance for such offences and can summon him.

23. Therefore, from the law laid down by the Constitution Bench of the Apex Court and above noted other judgments of the Apex Court it appears that Magistrate is having all the authority to take cognizance of any offence on the basis of the material collected by the Investigating Officer during investigation and if he arrives at the conclusion that an offence is also made out, in which, charge-sheet has not been submitted then he can take cognizance for such offence(s) too and can summon the accused and if any such offence is exclusively triable by the court of sessions then he shall commit the case before the court of sessions.

24. Although, in the case of Girish Radhakrishnan Varde (supra), the two judges Bench of the Apex Court held that Magistrate is not empowered either to add or subtract section in the charge-sheet at the time of taking cognizance and he can take cognizance only of those offences, in which, charge-sheet was submitted and only at the time of framing of charges he can add or subtract such sections but the judgment of Girish Radhakrishnan Varde (supra) was delivered on 25.11.2013 whereas the judgment of Constitution Bench of the Apex Court in the case of Dharam Pal (supra) was delivered on 18.07.2013 but in spite of that case of Dharam Pal (supra) could not be placed before the Apex Court, in case of Girish Radhakrishnan Varde (supra). Further, neither the judgments of Minu Kumari (supra) nor Ajay Kumar Parmar (supra) were placed before the two judges Bench of the Apex Court, which decided Girish Radhakrishnan Varde case (supra), therefore, in view of the observation made by Constitution Bench in case of Dharam Pal (supra) as well as by the Apex Court in cases of Minu Kumari (supra) and Ajay Kumar Parmar (supra) the view expressed in Girish Radhakrishnan Varde (supra) does not prevail. Therefore, it cannot be held that Magistrate is not having any authority to take cognizance for the offences, in which, charge-sheet has not been submitted.

25. Further, in the later judgment of the Apex Court in the cases of Balveer Singh (supra) the Apex Court after considering the dictum of Constitution Bench in the case of Dharam Pal (supra) clearly held that Magistrate is fully empowered to disagrees with the police report and he can independently apply his mind and can take cognizance even for such offences, in which, charge-sheet was not submitted if from the perusal of the charge-sheet i.e. police report submitted under Section 173(2) Cr.P.C. he arrives at the conclusion that such offences also made out. Similar import is also of the judgment of the Apex Court in case of Nahar Singh (supra).

26. As the Single Judge of this Court in case of Smt. Shalini Kashyap (supra) only after perusing the judgment of the Apex Court passed in Girish Radhakrishnan Varde (supra) held that Magistrate is not empowered to add or subtract any section in the charge-sheet, therefore, this case will be of no help for the applicant as at the time of making such observation, learned Single Judge of this Court did not discuss the law laid down by the Constitution Bench in the case of Dharam Pal (supra), Minu Kumari (supra), Balveer Singh (supra) and Ajay Kumar Parmar (supra). Although, Single Judge in later part of the judgment discussed the observation made by the Constitution Bench of Dharam Pal (supra) but with regard to different question to summon additional accused.

27. Therefore, from the discussion made above, in my considered view, as from the perusal of the statement of opposite party no.2, the informant and victim of the case, recorded under Section 161 Cr.P.C. and 164 Cr.P.C. prima facie offence under Section 376 IPC is made out against the applicant, therefore, Magistrate did not commit any illegality in summoning him under Section 376 IPC in spite of the fact that no charge-sheet was submitted against the applicant under Section 376 IPC.

28. Accordingly, the instant application under Section 482 Cr.P.C. stands dismissed.

Order Date :- 28.01.2023

AK Pandey