Delhi High Court
Savitri & Anr. vs State & Anr. on 18 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th September, 2014
+ CRL.M.C. No.1708/2013
SAVITRI & ANR. ..... Petitioners
Through: Mr. R. N. Sharma, Advocate.
versus
STATE & ANR. .....Respondents
Through: Mr. Parveen Bhati, APP for the
State.
Mr. Kamal Sawhney, Advocate for
R-2.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
VED PRAKASH VAISH, J. (ORAL)
1. By filing the present petition under Section 482 of Code of
Criminal Procedure, 1973 (hereinafter referred to as „Cr.P.C.‟) the
petitioners have assailed the order dated 26.02.2013 passed by learned
Metropolitan Magistrate, Rohini Courts, Delhi in case FIR No.77/2009
under Sections 323/325/34 registered at P.S. Maurya Enclave, Delhi
whereby the petitioners have been summoned for the offence punishable
under Sections 323/325/34 IPC.
2. In short, the facts of the case are that on the complaint of Smt.
Sushila Devi FIR No.77/2009 under Sections 323/325/34 IPC was
registered on 13.02.2009.
3. On completion of investigation, a final report under Section 173 of
Cr.P.C. was filed. Vide order dated 30.09.2010, cancellation report was
rejected by the trial court and the concerned Assistant Commissioner of
Police was directed to get the investigation done by another investigating
officer.
4. Again, after conducting further investigation final report was filed
and the name of accused persons (petitioners) were kept in column
No.12. The trial court after considering the final report took cognizance
and summoned the petitioners for the offence under Sections 323/325/34
IPC vide impugned order dated 26.02.2013.
5. Feeling aggrieved by the said order, the petitioners have filed the
present petition.
6. Learned counsel for the petitioners urges that on 24.01.2009, Ms.
Komal, who is daughter of respondent No.2/ complainant accompanied
the complainant/Smt. Sushila to Bhagwan Mahavir Hospital, Delhi,
where her statement was recorded by the police and she had not made any
allegation of inflicting any injury to her mother. On 24.01.2009, the
complainant was examined at Bhagwan Mahavir Hospital vide MLC
No.106/2009 and doctor opined injuries to be fresh in nature. The
investigating officer recorded the statement of witnesses under Section
161 Cr.P.C. and final report was submitted by the investigating agency
and the name of witnesses were kept in column No.12. He also submits
that no protest petition was filed by the complainant and the trial court
took cognizance.
7. Rebutting the arguments, learned APP for the State contends that
the charge was framed by the trial court on 03.04.2014 and the petitioners
have not challenged the order on charge.
8. At this juncture, it is necessary to re-produce Section 190 of
Cr.P.C., which reads as under: -
"190. Cognizance of offences by Magistrates. - (1) Subject
to the provisions of this Chapter, any Magistrate of the first
class, and any Magistrate of the second class specifically
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. From the perusal of Section 190 Cr.P.C., it is manifestly clear that
it empowers any Magistrate of the first class and second class specially
empowered in this behalf under sub-section (2) to take cognizance of any
offence in three contingencies.
10. It is a settled rule of law that if the Magistrate is satisfied that a
prima facie case had been made out to proceed further despite the final
report submitted by the investigating agency, Magistrate can take
cognizance of the offence in case the report under Section 173 of Cr.P.C.
is submitted and if the Magistrate disagrees with the police report he has
two choices, he may act on the basis of protest petition that may be filed
or he will while disagreeing with the police report issue process and take
the cognizance and summon the accused. Thereafter, if on being satisfied
that a case has been made out to proceed against the person or if he was
satisfied that a case has been made out which was triable by Court of
Sessions, he may commit the case to the Court of Sessions to proceed
further in the matter.
11. At the present stage the Magistrate is not to weigh the evidence
meticulously as if he were the trial court. The standard to be adopted by
the Magistrate in scrutinising the evidence is not the same as the one
which is to be kept in view at the stage of framing of charges. The truth,
veracity and effect of the evidence which the complainant produces or
proposes to adduce is not to be meticulously judged. The standard of
proof of judgment which is to be applied finally before finding the
accused guilty or otherwise is not exactly to be applied at the stage of
summoning.
12. In the instant case, the investigating agency had filed the final
report and kept the name of petitioners in column No.12 of the final
report. Learned trial court after considering the final report, statement
given by the prosecution witnesses and MLCs of the injured persons
found that there is sufficient evidence on record to proceed against both
the accused persons namely, Smt. Savitri and Mr. Kuldeep for the offence
punishable under Sections 323/325/34 IPC. There is no illegality and
infirmity in the order passed by the trial court. Accordingly the petition is
dismissed.
Crl. M.A. No.5318/2013
The application is dismissed as infructuous.
(VED PRAKASH VAISH)
JUDGE
SEPTEMBER 18, 2014
hs
