Kapil Yadav And Another vs State Of U.P. And Another
2023 Latest Caselaw 13535 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 81
 

 
Case :- CRIMINAL APPEAL No. - 772 of 2023
 

 
Appellant :- Kapil Yadav And Another
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Anil Kumar Sharma,Kapil Kumar,Lavkush Dixit
 
Counsel for Respondent :- G.A.,Akash Mishra
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Supplementary affidavit filed on behalf of the appellants is taken on record.

Heard Shri Lavkush Dixit, learned counsel for the appellants, Shri Akash Mishra, learned counsel for respondent no.2 as well as learned Additional Government Advocate for the State and perused the record.

The instant appeal under Section 14-A(1) SC/ST (Prevention of Atrocities) Act, has been filed by the appellants- Kapil Yadav and Pradeep Babbar with the prayer to allow the present criminal appeal and set-aside the judgment and order dated 05.09.2022 passed by the learned Special Judge, SC/ST (P.A.) Act, Court No.2 Etawah, under Sections 323, 504, 506 I.P.C. and Section 3(1)(R), 3(1)(S) and 3(2)(va) of SC/ST Act.

Learned counsel for the appellants submits that in pursuance of the first information report lodged by the opposite party no.2, after thorough investigation 'Final Report' was submitted, however, on a protest petition filed by the opposite party no.2/informant the Special Court has summoned the appellants to face trial under Section 190(1)(b) of the Cr.P.C. in relevant penal sections as a State case, which was not permissible having regard to the quality of material collected by the investigating officer during the course of investigation.

It is further submitted that summoning of the appellants may be done under Section 190(1)(b) of the Cr.P.C. if the material which has been collected by the investigating officer is sufficient enough to make a primafacie case against the appellants and when the investigating officer has filed the 'final report', it could easily be inferred that nothing incriminating was collected by the investigating officer against the appellants. Thus, the trial Court has committed manifest illegality in not only summoning the appellants but also summoning the appellants under Section 190(1)(b) of the Cr.P.C.. Thus, the impugned order is liable to be set-aside.

Learned counsel appearing for opposite party no.2, however, submits that the appellants have secured regular bail and they are not appearing before the trial Court for the last many dates and the trial Court was compelled to issue coercive process against them and still the charges against the appellants has not been framed and there is no illegality so far as the summoning order is concerned.

Learned A.G.A. has also supported the submissions made on behalf of the opposite party no.2.

Having heard learned counsel for the parties and having perused the record, it is evident that after submission of the Final Report/Closure Report by the investigating officer, the trial Court is having various options available to him.

The law governing the discretion of the Magistrate or Special Court with regard to dealing with the situation when a Final report has been submitted by police after investigation is no more res integra. There can not be any other proposition that in case of submission of a final report by the Investigating Officer, there are three options available before the Magistrate. (i) He after providing an opportunity to the informant may accept the final report or (ii) He can directly take the cognizance of the offence on the basis of the material available with the final report under Section 190 (1) (b) and may issue the process against the accused persons or (iii) may instead of taking cognizance of the offence may direct further investigation in the matter or taking cognizance of the matter under Section 190 (1)(a) and proceed under Chapter XV of the Cr.P.C. In this case the Magistrate has opted to proceed under Section 190(1)(b) of the Cr.P.C.

In Bhagwant Singh v. Commissioner of Police reported in AIR 1985 SUPREME COURT 1285 The Honble Supreme Court held as under:-

" 4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of S. 173 comes up for consideration by the Magistrate, one of two different situations may 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 do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under subsection (3) of S. 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156 and require the police to make a further report."

In India Carat Pvt. Ltd., M/s. v. State of Karnataka,1989 CRI. L. J. 963, It is held by Honble Supreme Court that Upon receipt of a police report under S.173(2) a Magistrate is entitled to take cognizance of an offence under S.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. S.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 S.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 Ss.200 and 202 of the Code for taking cognizance of a case under S.190(1)(a) though it is open to him to act under S.200 or S.202 also.

In Pakhandu v. State of U.P. reported in 2002 CRI. L. J. 1210, the case relied on by the applicant a Divisional bench of this court opined as under:-

"Where cognizance has been taken under S. 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-sec. (2) of S. 202, Cr.P.C. shall have no application. 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 S. 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 S. 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Ss. 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. Where the Magistrate decides to take cognizance of the case under S. 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 Ss. 200 and 202 of the Code, and consequently the proviso to S. 202(2), Cr.P.C. will have no application. 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 the stage to make use of any material other than investigation records, unless he decides to take cognizance under S. 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under S. 200. From the above it is absolutely clear that proviso to sub-sec. (2) of S. 202 of the Code will apply only to a case where the Magistrate has taken cognizance under S. 190(1)(a) and has opted to hold inquiry under S. 202 after examining the complainant and witnesses present, if any, under S. 200, Cr.P.C."

In Gangadhar Janardan Mhatre v. State of Maharashtra reported in AIR 2004 SUPREME COURT 4753 Honble Supreme Court held as under:-

"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 proceedings, 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. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. (See M/s. India Sarat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885)."

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. 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."

It is clear by the aforesaid decisions that Section 190, 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 or Special Court exercising power of trial Court, 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.

Having gone through all the facts and circumstances of the case, it appears that no illegality has been committed by the Special Court while summoning the appellants to face trial in relevant penal offences while taking cognizance of the offences under Section 190(1)(b) of the Cr.P.C. Thus, there is no difficulty in accepting and affirming the impugned order passed by the trial Court.

Thus, the prayer of the appellants so far as the same is concerned to quash the impugned order where by the appellants have been summoned to face trial under Section 190(1)(b) of the Cr.P.C. is, hereby, refused.

The admitted position to the parties appears to be that appellants have secured regular bail and the charges have still not been framed by the Special Court. There cannot be any proposition other than the fact that the ambit of discretion and the jurisdiction of the Magistrate or the Special Court, as the case may be is different while framing of charge than the summoning of the accused person(s) under Section 204 Cr.P.C.

Since the charges have still not been framed against the appellants, the appeal filed by the appellants is finally disposed of in terms that the appellants within 20 days from today, may move an appropriate application for discharge and if such an application is moved before the Trial Court/Special Court within the time stipulated herein-before, the trial Court shall be under an obligation to dispose of the same, after providing an opportunity of being heard to the parties, strictly in accordance with law.

The trial Court may also explore the possibility of settlement of dispute through the course of mediation.

Order Date :- 1.5.2023

Praveen