Rajeev Katiyar And 2 Others vs State Of U.P. And Another
2023 Latest Caselaw 6959 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 12.01.2023
 
Delivered on  03.03.2023
 
Court No. - 88
 

 
Case :- CRIMINAL APPEAL No. - 4330 of 2022
 
Appellant :- Rajeev Katiyar And 2 Others
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Kuwar Ritesh Kumar,Krishna Kumar Singh
 
Counsel for Respondent :- G.A.,Lavkush Kumar Bhatt
 

 
Hon'ble Raj Beer Singh,J.

1. Heard learned counsel for the appellants, learned counsel for the respondent No.2 and learned AGA for the State.

2. This appeal has been preferred under section 14 A (1) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as SC/ST Act) for setting aside the cognizance/ summoning order dated 27.04.2022, passed by the learned Special Judge, (SC/ST Act), Farrukhabad, in Criminal Misc. Case No.94/11/18 (State vs. Manju), Case Crime No.874 of 2017, under Sections Section 376-D, 504, 506 IPC and 3(2) (v) SC/ST Act, P.S. Kotwali Farrukhabad, District Farrukhabad.

3. It has been argued by learned counsel for the appellants that the impugned order is against facts and law and thus, liable to be set aside. The respondent No.2 has lodged first information report of this case making false allegations of rape. After investigation, the said incident was found false and the police have submitted the final report in favour of appellants. The respondent No.2 has filed a protest petition, on which the court below made a direction for further investigation. After further investigation, the police have again submitted final report with the conclusion that allegations levelled by the respondent No.2 are false. The respondent No.2 has again filed a protest petition. The Court below rejected the said final report and summoned the appellants under Section 376-D, 504, 506 IPC and 3(2)(v) SC/ST Act, vide impugned order dated 27.04.2022. Learned counsel further submitted that the marriage of brother of appellant No.3 has taken place with respondent No.2 in the year 2015 but there was some matrimonial dispute between them and earlier the respondent No.2 has filed two criminal cases against appellant No.3 and other persons. Referring to the facts of the matter, it was submitted that the allegations that the appellants have committed rape upon respondent No.2 or that they have made any video of informant, are thoroughly false and improbable. It was pointed out that in her statement under Section 161 CrPC, the respondent No.2 was specifically asked a question by the investigating officer, whether the accused persons are related to her and she has denied the same, whereas, the appellant No.3 is brother-in-law (Jeth) of respondent No.2 and she has already filed two cases against appellant No.3 and others. Learned counsel has referred the facts of the matter and submitted that impugned order is against facts and law. It was submitted that in view of law laid down in case of State of Haryana and others Vs. Bhajan Lal and others, [1992 Supp (1) Supreme Court Cases 335] the impugned order is liable to be quashed. It was submitted that the while passing the impugned summoning order, the trial court has not considered the relevant facts of the matter. Learned counsel submitted that the impugned summoning order is abuse of the process of law and thus, liable to be quashed.

4. Learned AGA and learned counsel for respondent No.2 have opposed the appeal. Learned counsel for respondent No.2. argued that in her statement under Section 161 and 164 CrPC, the respondent No.2 has clearly stated the they have taken away the respondent No.2 on pretext of providing lift in their car and thereafter, committed rape upon her. It was stated that police have not investigated the matter properly and submitted a final report. The court below has considered the entire facts and evidence and passed the impugned order and summoned the appellants for the offences under Section 376-D, 504, 506 IPC and 3(2)(v) SC/ST Act. There is no illegality or perversity in the impugned order. It is further submitted that process under Section 82 and 83 CrPC has already been issued against appellants.

5. I have considered rival submissions and perused record.

6. In the instant matter, the informant has lodged first information report against the appellants, inter-alia making allegations of rape. After investigation, the police found the incident false and submitted final report (closure report). On protest petition of informant, direction for further investigation was made but the police again filed closure report. On protest petition of the informant, the Court below rejected the final report (closure report) and took cognizance under Section 190 (1) (b) Cr.P.C. and summoned the appellants vide impugned order.

7. Chapter XIV of Cr.P.C. deals with conditions requisite for initiation of proceedings and also the powers of cognizance of a Magistrate. Provisions of section 190 Cr.P.C., relevant for this case, are reproduced as under:

"190. (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."

8. It is well-settled that if magistrate finds that Police have not made proper investigation and submitted final report, it can direct police to make further investigation in the matter, or, if there is sufficient material, he can pass order taking cognizance and summoning accused. In case of Tula Ram Vs. Kishore Singh AIR 1977 SC 2401, the Apex court observed 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.

9. Similarly in M/s India Carat Pvt. Ltd. Vs. State of Karnataka 1989 (26) ACC 280 (SC), the 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) Cr.P.C. 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.

10. The observations made in para 16 and 17 in M/s India Carat Pvt. Ltd. Vs. State of Karnataka (supra), make it very clear that Magistrate if proceeds to take cognizance on Police report, material which can be examined by him would be such which has been collected during investigation. If Magistrate finds that Police has not properly made investigation and appropriate material has not been collected, it is always open to him to direct Police for further investigation but if Magistrate finds fault with investigation made by Police and still finds justification to proceed with the matter taking into account complaint made by complainant, in such case he has to examine complainant and his witness and thereafter issue process.

11. Thus, it clear that while proceeding to issue process considering facts emergent from investigation and taking a different view than what has been reported by Police, Magistrate need not apply procedure laid down in Section 200 and 202 Cr.P.C. However, if Magistrate finds lack of material with investigation of Police, option available to him is to take into account original complaint and if that is adopted by Magistrate, he is bound to follow procedure prescribed in Section 200 and 202 or taking cognizance, but he can not mix-up the material placed by complainant along with Protest Petition to take cognizance after rejecting Police Report but without following the procedure prescribed under Chapter XV.

12. A similar view has also been expressed in Rakesh and another Vs. State of U.P. and another 2014 (13) SCC 133, where Court referred to and relied on the decision in H.S. Bains Vs. State (UT of Chandigarh) 1980 (4) SCC 631. In Minu Kumari and another Vs. State of Bihar and others 2006 (4) SCC 359, Court held 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 congnizance 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."

13. This Court has also followed a similar view and in this connection reference may be made to case of Pakhando and others Vs. State of U.P. 2001 (43) ACC 1096, wherein a Division Bench of this Court after considering Section 190 Cr.P.C. has held that if upon investigation Police comes to conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify forwarding of accused for trial and submits final report for dropping proceedings, Magistrate shall have following four courses and may adopt any one of them:

"(I) He may agree 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;

(II) He may take cognizance under Section 190(I)(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(I)(b) 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."

14. Thus, the position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate / court is entitled to take cognizance of an offence under Section 190(1)(b) Cr.P.C., 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. 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.

15. It is also clear that when on receipt of a police report under Section 173(2) to the effect that no case is made out against the accused, the Magistrate / court takes cognizance under Section 190(1)(b) of the Code and summons the accused, in such circumstances the satisfaction of Magistrate / Court must be based on material collected during investigation. In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294, it was observed that when the magistrate decides to take cognizance under section 190 (1) (b) Cr.P.C. 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.

16. In the instant case, perusal of record shows that the respondent No.2 / informant has lodged the first information report against appellants under sections 376-D, 504, 506 IPC and 3(1)(12) SC/ST Act, alleging that on 04.09.2017 at about 4:30 AM she was coming back from Delhi and left the bus at Lal Darwaja, Farrukhabad and while she was waiting there for some vehicle, at the same time, the appellants-accused came in an Alto car and offered lift to her by saying that they would leave her at her house. On their assurance, the respondent No. 2/ informant sat in the car but the accused-appellants, who were under influence of liquor, drove her to a field near the Fertilizer factory and they committed rape upon her and also prepared a video of the respondent No. 2/ informant and threatened by using caste indicative words that if she did not submit herself to them, they would circulate her video. After investigation, police found the incident false and submitted final report in favour of appellants. On protest petition of the informant, the court directed for further investigation but again the police submitted final report with conclusion that allegations of respondent No.2 / informant are false. She has again filed a protest petition, on which the final report was rejected and appellants were summoned for offences under sections 376-D, 504, 506 IPC and 3(1)(5) SC/ST Act vide impugned order dated 27.04.2022. Perusal of record further shows that marriage of respondent No. 2/ informant has taken place with brother of appellant No.3 in the year 2015 and there was some matrimonial dispute between them and that earlier respondent No.2 / informant has lodged two criminal cases against appellant No.3 and other persons. The appellant No.3 is brother-in-law (Jeth) of respondent No.2/informant. It appears that respondent No.2 / informant has concealed the fact in the first information report that accused-appellant No.3 is her brother-in-law and that she was having matrimonial dispute with her husband, who is brother of appellant No.3, and that she has earlier lodged two criminal cases against appellant No.3 and his family members. The concealment of these facts raises a serious doubt about the authenticity of the version of respondent No.2. Further, it appears quite unnatural that when the respondent No. 2/ informant reached at Farrukhabad from Delhi by bus and left the bus at above stated place in Farrukhabad, suddenly the appellants-accused appeared in a car at 4:00 AM and offered her lift in the car. As stated above, she has already lodged two cases against appellant No.3 and thus, it appears improbable that she would accompany him in the car and that too at such odd hours (4:00 AM). There is nothing to show that the respondent No. 2/ informant has sustained any injury. Alleged incident has been shown of 04.09.2017 and it appears that the informant has made an application to the I.G. police on 26.09.2017 and thereafter this case was registered on 27.09.2017. This long delay in lodging the first information report also affects the credibility of the version of informant. It was pointed out that in her statement she was asked a specific question by the investigating officer that whether any of the accused is related or known to her and she has denied the same. The question as to whether there was any previous litigation between them, was also replied by her in negative. In view of the material collected during investigation, it is apparent that informant has made false statement that she is having no relation with any of the appellant- accused or that they were not known to her. When asked as to how she knows the names of the appellants-accused, she has stated that they are residents of the village of her aunty (Bua). From statement of Ram Avatar, who is father-in-law of informant, it appears that she has lodged two cases against the family of her husband, including the appellant No.3. In her statement under section 164 CrPC, she has merely made a vague allegation that all the three appellants-accused persons did bad act with her. No specific details of incident were mentioned. As stated above, she did not sustain any injury and she has concealed material facts. In view of attending facts and circumstances of the case the version of the respondent No. 2 / informant regarding alleged rape appears highly unreliable and improbable. In view of these specific facts, the statement of the respondent No. 2/ informant under section 164 CrPC cannot be treated as a gospel truth and there is no such law that in every case the court is bound to act upon the statement of victim, recorded under section 164 CrPC. The evidentiary value of statement recorded under section 164 CrPC is no more than a statement recorded under section 161 CrPC. It appears that these proceeding are manifestly attended with mala fide and have been instituted with an ulterior motive for wreaking vengeance on the appellants-accused. In view of all attending facts and circumstances of the case, the version of respondent No. 2 / informant appears thoroughly doubtful. Here, it may be mentioned that in case of State of Haryana and others Vs. Bhajan Lal and others, (Supra), one of the contingency for quashing of proceedings is that where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, such proceedings may be quashed.

17. Considering the facts and circumstances of the instant case in light of well settled positions of law, it is apparent that the allegations made by the informant/respondent No.2 in the first information report and in her statement during investigation, are quite absurd and so inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings against accused/appellants. It appears that the court below did not consider the facts and circumstances of the matter in correct perspective while passing the impugned summoning order. It seems that the learned Court below has arbitrarily discarded the evidence collected during investigation and also did not consider the statements of independent witnesses, who have denied commission of any such incident. The Court below rejected the final report and summoned the appellants mainly on the basis of statement of informant/prosecutrix recorded under Section 164 CrPC, which in the attending facts and circumstances of the case was thoroughly unreliable, vague and suffering from vice of improbability. The facts and circumstances of the case clearly show that the informant has lodged this case with intention to exert undue pressure upon the appellant No.3 and his family members in matrimonial dispute. Considering all relevant facts and material collected during investigation and the well settled positions of law, it appears that impugned criminal proceedings are manifestly attended with mala-fide and the same have been instituted with ulterior motive for wreaking vengeance on the accused/appellants, and thus the impugned order is liable to set aside.

18. In view of above, the impugned cognizance/ summoning order dated 27.04.2022 is quashed. The final report submitted by police stand accepted.

19. With the aforesaid observations, the appeal is allowed.

Order Date :- 03.03.2023

Neeraj