Smt. Ramlali vs State Of U.P. And 6 Others
2023 Latest Caselaw 16090 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:111897
 
Court No. - 81
 

 
Case :- CRIMINAL APPEAL No. - 2078 of 2023
 

 
Appellant :- Smt. Ramlali
 
Respondent :- State Of U.P. And 6 Others
 
Counsel for Appellant :- Shubhranshu Pandey
 
Counsel for Respondent :- G.A.,Krishna Gopal
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Shubhranshu Pandey, learned counsel for the appellant/informant, Shri Krishna Gopal, learned counsel appearing for opposite party nos. 2 to 7 as well as learned A.G.A. for the State and perused the record.

The instant appeal under Section 14-A(1) of the SC/ST (Prevention of Atrocities) Act, 1989 has been filed by the appellant- Smt. Ramlali with the prayer to allow this application and to stay the effect and operation of the impugned order dated 09.01.2023 passed by learned Special Judge (SC/ST) Act, Bareilly in Criminal Misc. Case No. 1347 of 2019 (Smt. Ramlali vs. Lalkaran Patel and others), arising out of Final Report No. 50 of 2019 in Case Crime No. 105 of 2019, under Sections 147, 323, 504, 506, 452 I.P.C. and Section 3(1)(x) of SC/ST Act, Police Station Cantt. District Bareilly.

Learned counsel for the appellant while referring to the impugned order of date 09.01.2023, vehemently submits that the Special Court has committed manifest illegality in rejecting the prayer of the appellant/informant to take cognizance of the offences and summon the opposite parties no. 2 to 7 to face trial for the offences attracting against them.

It is also submitted that by passing impugned order the Special Court has not only rejected the request of the appellant/informant to reject the 'Final Report' submitted by the investigating officer but also did not take cognizance under Section 190(1)(b) of the Cr.P.C. and even not provided any opportunity to the appellant/informant to present any complaint or to treat the protest petition filed by the appellant/informant as complaint and, thus, material illegality has been committed by the Special Court in passing the impugned order.

Learned counsel appearing for opposite party nos. 2 to 7 vehemently submits that there was no material available in the case diary on the basis of which the cognizance under Section 190(1)(b) of the Cr.P.C. may be taken by the Special Court and, thus, the request in this regard has been rightly rejected by the Special Court. However, there was no prayer made on behalf of the appellant/informant to treat the protest petition as complaint and, thus, there was neither any opportunity nor any occasion for the Special Court to have treated the protest petition as complaint.

Learned A.G.A., however, supported the impugned order.

Having heard learned counsel for the parties and having perused the record, it is evident that on an F.I.R. lodged by the appellant/informant, the investigating officer has submitted the 'final report/closure report' to the Special Court and on a protest petition being filed praying to summon the accused persons to face trial under relevant provisions of the I.P.C. and S.C/S.T. Act and the same has been rejected by the Special Court by passing the impugned order.

Perusal of the impugned order would reveal that the Special Court has not considered the possibility of treating the petition filed by the appellant as complaint and what has been deliberated by the Special Court is the sufficiency of material available in the case diary for the purpose of summoning under Section 190(1)(b) Cr.P.C.

The law with regard to the summoning of the proposed accused persons on the protest petition filed by an aggrieved informant is now now more res integra and the same has been set at rest by Catena of Judgments of the Hon'ble Supreme Court in following cases:-

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.

Thus, having regard to all the facts and circumstances of the case, I do not find any illegality in the impugned order so far as rejecting the prayer of the appellant for taking cognizance under Section 190(1)(b) of the Cr.P.C. However, the law is well-settled in this regard that even after accepting the 'final report', an aggrieved preson may file a complaint before the Magistrate or the Special Court, as the case may be. Thus, the impugned order passed by the Special Court of date 09.01.2023 is hereby affirmed and the appeal preferred by the appellant/informant is finally disposed of with the direction if any complaint is filed by the complainant/informant, under 2(d) of the Cr.P.C., the Special Court would be under an obligation to dispose of the same having regard to the settled law and procedure, as provided under Chapter XV of the Cr.P.C.

It is further provided that the Special Court would not be guided by any observations made by this Court in the above-mentioned judgment/order, as the case may be, as the same are only for the purpose of disposal of the instant appeal and the trial Court/Special Court shall be free to ascertain/assess the material, which would be placed before it along with the complaint.

Order Date :- 22.5.2023

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