Afzal Beg and Others vs State of U.P. and Others

Maithli Sharan, J.—This is a petition u/s 482, Code of Criminal Procedure invoking the inherent powers of this Court, moved by the Petitioners for setting aside the impugned orders dated 21.4.97 Annexure No. 2 and 2.5.97 Annexure No. 1, passed by the Judicial Magistrate IInd Gonda and Sessions Judge, Gonda.

The brief facts of this case are thus: opposite party No. 4 Arif Anwar Hashmi lodged a first information report at the police station, Sadulla Nagar, district Gonda on 24.6.90 against the Petitioners for the offences under Sections 147, 148, 149, 307, 353, 504 and 506. I.P.C. and case Crime No. 69/90 was registered. The investigation was done by the police and it submitted the final report on 23.12.94. After the submission of the final report by the police, opposite party No. 4 Arif Anwar Hashmi submitted objection before the trial court with the prayer that the accused/Petitioners be summoned and the proceedings in accordance with law be started against them. The learned trial Magistrate rejected the final report and summoned the Petitioners for the aforesaid offences. The Petitioners submitted an application before the Judicial Magistrate concerned, requesting therein that since the police had submitted a final report in the case, hence the present case be treated as a complaint case and the trial of the case should be proceeded accordingly. The said application of the Petitioners was rejected by the trial Magistrate by the order dated 21.4.97. Aggrieved by the said order, the Petitioners filed Criminal Revision Petition No. 136/97 before the Sessions Judge, who also dismissed the revision petition. Now the Petitioners have invoked the inherent powers of this Court u/s 482, Code of Criminal Procedure.

I have heard the learned Counsel on both the sides at length and have carefully gone through the record of the case.

The summoning order of the Magistrate nowhere states that he had gone through the protest petition or the affidavit moved by the opposite party No. 4. It simply goes to indicate that since final report was filed by the police and the Magistrate concerned thought it proper on the basis of the statements of the witnesses recorded by the Police u/s 161, Code of Criminal Procedure to summon the accused/Petitioners, hence only he passed the said order dated 21.4.97, summoning them. According to him, the final report filed by the police was not proper as prima facie offences under Sections 147, 148, 149, 307, 353, 504 and 506, I.P.C. were made out against the accused persons.

Learned Counsel for the Petitioners has argued that since the summoning order was passed on the basis of the protest report, hence the Magistrate concerned should have proceeded with the case as a complaint case, and thus, the impugned order dated 21.4.97 (Annexure No. 2) passed by him is illegal and further that the impugned order dated 2.5.97 passed by the Sessions Judge, Gonda in revision is also against law. I am afraid, the argument advanced by the learned Counsel is not sound.

u/s 190 of the Code of Criminal Procedure, the cognizance of the offence is taken by the Magistrate. The provisions engrafted under this Section run as below:

Cognizance of offences by Magistrate.--(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.

Thus, three modes for taking cognizance of the offence by the Magistrate are given u/s 190 of the Code of Criminal Procedure. Clause (b) of Sub-section (1) provides that it could be taken upon a police report of such facts. It does not indicate that after the filing of the final report, the Magistrate cannot take cognizance of the offence prima facie made out on the basis of the first information report and the statements recorded u/s 161, Code of Criminal Procedure. I am of the view that the Magistrate is empowered to take cognizance of an offence u/s 190(1)(b) of the Code of Criminal Procedure even if the police report is to the effect that no case is made out against the accused. The Magistrate is fully empowered to take into consideration the statements of the witnesses recorded u/s 161 of the Code of Criminal Procedure during the investigation and on that basis, he can take cognizance of the offences complained of and would be fully justified to order the issue of the process to the accused. It is not at all necessary that the Magistrate can take cognizance of the offence only when the Investigating Officer has made out a case against the accused. He is legally empowered to ignore the conclusions arrived at by the Investigating Officer, and apply his judicial mind to the factual aspects of the case. Therefore, it emerges that the Magistrate is not bound, in such a situation, to follow the procedure laid down under Sections 200 and 202 of the Code of Criminal Procedure. My view is fortified by the view taken by Hon''ble the Supreme Court in a case, India Carat Pvt. Ltd. v. State of Karnataka and Ors. 1991 UP CR 208.

In view of the above discussion touching the legal aspects of the matter, I find no substance into this petition which is hereby dismissed.