Shyam Pal Singh And Others vs Abdul Karim And Others
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Allahabad High Court

Shyam Pal Singh And Others vs Abdul Karim And Others on 4 January, 2024

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Reserved 
 
Neutral Citation No. - 2024:AHC:1488
 
Court No. - 65
 

 
Case :- APPLICATION U/S 482 No. - 467 of 2006
 
Applicant :- Shyam Pal Singh And Others
 
Opposite Party :- Abdul Karim And Others
 
Counsel for Applicant :- Rakesh Chandra Upadhyay,Dr. Madan Sharma,G.S. Chaturvedi,Sanjay Kumar Mishra
 
Counsel for Opposite Party :- Govt. Advocate,A.C.Srivastava,Anil Raghav,G.S. Hajela,Gyan Prakash(Senior Adv.),S.P.S. Raghav
 
Hon'ble Raj Beer Singh,J.
 

1. Heard learned counsel for the applicants, learned counsel for the informant, Sri Gyan Prakash, learned Senior Advocate/Deputy Solicitor General of India, assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I. and perused the record.

2. This application u/s 482 Cr.P.C. has been filed with the prayer for quashing of the summoning order dated 13.12.2005 passed by the Special Judicial Magistrate, CBI, Ghaziabad in M. 01 of 2005, u/s 302/34 IPC, as well as for quashing of the entire proceedings of the aforesaid case.

3. Learned counsel for the applicants submitted that the applicants are police officials and at the time of alleged incident, they were posted at Police Station Lisari Gate -Meerut and that on 09.12.002 after receipt of a secret information, they have conducted a raid at grove at village Lisari, wherein miscreants have made firing at the police party and in retaliation police have also fired some shots in their self defence. In the said encounter, one of the miscreant namely Kamman had sustained injuries and later on died and another has fled away. One Abdul Karim brother of deceased Kamman has filed a writ petition before this Court, wherein direction was made for registration of case and investigation by the Central Bureau of Investigation (hereinafter referred as CBI). Accordingly, C.B.I. conducted investigation and submitted closure report with conclusion that the incident of encounter is genuine and that the allegations levelled by the informant could not be substantiated.

4. Learned counsel for the applicants further submitted that against that closure report, the informant has filed protest petition along with some affidavits and thereafter the applicants were summoned by the trial court vide impugned order dated 13.12.2005. It was submitted that on the basis of affidavits filed along with protest report, the Court cannot summon the accused persons and that there was absolutely no basis for summoning of the applicants. Learned counsel for the applicants has placed reliance upon the judgment in the case of Wakil Ahmad and Others vs. State of U.P. and Others, reported in MANU/UP/0825/2020, Mohd. Yusuf and Others vs. State of U.P. and Another, reported in 2007 0 Supreme(All) 2080 and Mitra Sen Yadav and Another vs. State, reported in 2009 0 Supreme(All) 2741. Learned counsel further submitted that at the time of alleged incident, the applicants were discharging their official duty in police department and the alleged incident was part of their official duty but no sanction for prosecution has been obtained and thus the impugned proceedings cannot be continued. It was submitted that impugned order is against facts and law and thus, liable to be set aside.

5. Sri Gyan Prakash, learned Senior Advocate/Deputy Solicitor General of India, assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I., as well as learned counsel for the informant have submitted that after due investigation, the C.B.I. has submitted closure report and that the applicants were summoned by the trial court on the basis of protest petition.

6. I have considered rival submissions and perused the record.

7. Perusal of record shows that at the relevant time the applicant No. 1 was posted as Station Officer of police station Lisari Gate Meerut and remaining applicants / police officials were also posted at the same same police station. It was alleged that on 09.12.002 after receipt of a secret information, the applicants have conducted a raid, wherein miscreants have made firing at the police party and in retaliation the applicants have also fired shots and in the said encounter one of the miscreant namely Kamman had sustained injuries and later on died and another has fled away. Regarding that incident the police have registered a first information report alleging that alleged miscreants have made firing at the police party. The opposite party No. 1 Abdul Karim has filed a writ petition before this Court, wherein direction was made for registration of case and investigation by the CBI. The C.B.I. conducted investigation and submitted closure report with conclusion that the incident of encounter is genuine and that the allegations levelled by the informant could not be substantiated. The informant / opposite party No. 1 has preferred a protest petition along affidavits of some witnesses against that closure report and thereafter the applicants were summoned by the trial court vide impugned order dated 13.12.2005.

8. 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."

9. 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. 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. The observations made in M/s India Carat Pvt. Ltd. (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.

10. Thus, it is 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. 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.

11. 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."

12. 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(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)(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."

13. 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. even if the police report is to the effect that no case is made out against the accused and for that purpose, 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. 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 and others (supra), relied by learned counsel for the applicants, 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. It is not permissible at that stage to consider any material other than that collected by the investigation Officer. In the instant matter it is apparent from impugned order that after investigation the CBI has submitted closure report and learned Magistrate took cognizance and summoned the applicants, on the basis of the protest petition and the accompanying affidavits. It appears that learned Magistrate has relied affidavits, filed along with protest petition, while summoning the applicants by the impugned order. In fact 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 Sections 200 and 202 Cr.P.C and only thereafter must have consider whether a prima facie case for summoning of applicants is made out or not. Thus 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. It is clear that the impugned order is not accordance with law and thus, liable to be set aside.

14. In view of aforesaid, the impugned order dated 13.12.2005 passed by the Special Judicial Magistrate, CBI, Ghaziabad is set aside. The matter is remitted back to the court concerned to consider the matter and to pass an order afresh in accordance with law.

15. The application under section 482 CrPC is partly allowed in above terms.

Order Date :- 04.01.2024

S Rawat/Anand