Shanno vs State Of U.P. And 2 Others
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Allahabad High Court

Shanno vs State Of U.P. And 2 Others on 20 March, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:40615
 
Court No. - 71
 
Case :- APPLICATION U/S 528 BNSS No. - 8955 of 2025
 
Applicant :- Shanno
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Mohd. Afzal,Shivangi Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.
 

1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material brought on record.

2. This application under Section - 528 B.N.S.S. has been preferred against order dated 24.01.2025, passed by learned Chief Judicial Magistrate, Bijnor in Criminal Misc. Case No. 11664 of 2024 (Shanoo Vs./ Mohd. Aktar and Others), under Sections - 452, 376-D, 506 I.P.C., Police Station - Chandpur, District - Bijnor, whereby the protest petition of the applicant has been registered as a complaint case.

3. It is submitted by learned counsel for the applicant that impugned order is against facts and law and thus, liable to be set aside. The applicant has lodged the first information report of this case under Section - 452, 376-D, 506 I.P.C. on 13.05.2017, making allegations of gang rape against opposite party No.2 and 3. The police did not investigate the matter properly and submitted closure report. The applicant has preferred a protest petition, which was accepted and cognizance was taken against opposite party No.2 and 3 for offence under Section - 376-D, 452, 506 I.P.C. and they were summoned accordingly vide order dated 02.03.2019, passed by the A.C.J.M., Court No.3, Bijnor. The revision against said order was dismissed by the Session Court vide order dated 26.11.2019. It is further submitted that the private opposite parties have preferred an application under Section - 482 Cr.P.C. No. 22686 of 2021 against summoning order dated 02.03.2019 as well as against the order dated 26.11.2019, but that application under Section - 482 Cr.P.C. was also dismissed by this Court vide order dated 09.05.2022. The opposite party No.2 and 3 have challenged the said order before the Hon'ble Apex Court, wherein by order dated 30.07.2024, the summoning order passed by the learned Magistrate was set aside and the matter was remitted to the Judicial Magistrate concerned for passing an order afresh after hearing both the parties. Learned counsel submitted that by impugned order dated 24.01.2025 the C.J.M., Bijnor has registered the protest petition of the applicant as a complaint case and matter was fixed for statement of complainant under Section - 200 Cr.P.C..

4. It is further submitted that the observation made by the Hon'ble Apex Court in order dated 30.07.2024 that no date and time of alleged sexual assault was mentioned by the victim, is against the record. In the first information report itself the date and time of sexual assault has been mentioned. Similarly, in statement under Sections - 161 Cr.P.C. as well as in 164 Cr.P.C., the applicant has mentioned date and time of incident. There was no fresh material before the learned C.J.M. to differ from his earlier view, by which the opposite party No.2 and 3 were summoned for offence under Section - 376-D, 452, 506 I.P.C.. Referring to facts of the matter, it was submitted that impugned order is against facts and law and thus, liable to be set aside.

5. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order.

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

7. It is well settled that when upon investigation of a case, police files final report (closure report), the Magistrate can accept such report and drop the proceedings after providing opportunity of hearing to the complainant or he may take cognizance under Section - 190 (1) (b) Cr.P.C. and issue process to the accused. The Magistrate has also option of directing further investigation or treating the protest petition of complainant as a complaint case. 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. 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. 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, the 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(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."

13. Thus, it is well settled that upon receipt of a police report under Section - 173 (2) Cr.P.C., a Magistrate is entitled to take cognizance of an offence under Section - 190 (1) (b) Cr.P.C.. Similarly, in appropriate cases the Magistrate without issuing process, can proceed to take cognizance under Section - 190 (1) (a) Cr.P.C. upon original complaint or protest petition treating the same as complaint and proceed to act under Sections - 200 and 202 Cr.P.C. and thereafter to decide whether complaint should be dismissed or process should be issued.

14. In the instant matter, it appears from record that applicant has lodged first information report against opposite party No.2 and 3 alleging that on 11.05.2017 at about 03:00 P.M., the said opposite party No.2 and 3 trespassed into her house and committed rape upon her. After investigation, police have submitted closure report. The protest petition of applicant was accepted and opposite party No.2 and 3 were summoned vide order dated 02.03.2019. It appears that revision against that order was dismissed by the Session Court and thereafter opposite party No.2 and 3 have filed an application under Section - 482 Cr.P.C. against summoning order as well as against the order of Revisional Court but the same was also dismissed. The opposite party No.2 and 3 have approached the Hon'ble Apex Court by filing SLP (Crl.) No(s). 7178/2022, wherein in paragraph No. 6 and 7, the Hon'ble Apex Court has made following observations :-

"6. On a bare reading of the High Court order, we find that it essentially revolves around the scope of interference in exercise of powers of a High Court under Section 482 of Cr.P.C. as also the scope of consideration by the Magistrate while issuing process under Section 190(1) (b) of Cr.P.C.

7. In our considered view, the issue that falls for consideration is whether the closure report submitted by the police, according to which, there was no date and time of the sexual assault; and the doctor's report which also did not support the allegations were liable to be discarded, and if so, on that grounds? The Magistrate should tread carefully in such matters where the investigation report indicates past enmity, as there is a civil dispute pending between the parties, and there is a reason to grind an axe against the petitioners. It is, however, not desirable or expedient for us to express any further opinion. Suffice it to observe that the issue of acceptance and rejection of the closure report filed by the Investigating Officer requires reconsideration by the Judicial Magistrate, after giving adequate opportunity of hearing to both sides. Order accordingly.

15. In pursuance to the order of the Hon'ble Apex Court, learned Chief Judicial Magistrate has re-considered the matter and after hearing both the parties passed the order dated 24.01.2025, whereby the protest petition of applicant has been registered as a complaint case. As stated earlier it is well settled that in such circumstances, the Magistrate has power and jurisdiction to register the protest petition as a complaint case and to proceed to act under Section - 200 and 202 Cr.P.C.. It appears from impugned order that applicant has not sustained any injury and that civil dispute was pending between the parties. The version of complainant is not supported by medical evidence. The alleged dispute has been shown of day time. Nowadays, it is not uncommon that where civil disputes are pending between the parties, some of the parties go to any extent in order to settle score in civil dispute. In view of all attending facts and circumstances of the matter, it cannot be said that by registering the protest petition of applicant as a complaint case, learned C.J.M. has committed any patent illegality or there has been any abuse of the process of Court or the impugned order is suffering from any such patent perversity, so as to require any interference by this Court by invoking extraordinary jurisdiction under Section - 528 BNSS. The application under Section - 528 BNSS lacks merit and thus, the same is liable to be dismissed.

16. The application under Section - 528 BNSS is hereby dismissed.

Order Date :- 20.3.2025/S Rawat