Ahibaran Singh and Others vs State of U.P. and Another

M. Wahajuddin, J.—This case has been taken up after the list has been revised. Sri R.C. Yadav, appeared for the Petitioners as brief holder of Sri Prem Prakash, Advocate, counsel for the Petitioner. None appeared for opposite party No. 2. The Assistant Government Advocate appeared for the State. 2. It would appear that a case was registered against the Petitioner u/s 307, IPC. The police submitted final report in this case. Before its acceptance a protest petition was filed by Devi Charan informant on 18-8-1981, who was also represented by a Counsel. The Magistrate, after considering the protest petition and also after hearing the arguments of the Counsel for the opposite party No. 2, observed that final report has been produced before him, arguments have been heard and accused persons be summoned. This order was passed on 25-8-1981. A revision was also preferred before the Sessions Judge and was dismissed vide order dated 21-11-1981.

The applicants, who have been summoned under Sections 307/34, IPC, feeling aggrieved by the order have come forward u/s 482, Code of Criminal Procedure, with a prayer that the proceedings against them be quashed.

It is noteworthy that in the case of Abhinandan Jha and Others Vs. Dinesh Mishra, , it was held that while the Magistrate cannot direct the police to submit any charge-sheet, his powers to take cognizance notwithstanding any final report by the police are unfettered. In the circumstances, the Magistrate was well within his competence to take cognizance on a protest petition of Devi Charan, opposite party No. 2. The powers contained under different Sub-sections of Section 190, Code of Criminal Procedure for taking cognizance are very wide.

The next point that would arise for consideration is as to what procedure has to be adopted. In the case of Pradum Narain Pandey v. State of V. P. 1958 ACC 223 it was held by a Division Bench of this Court that it is open to the Magistrate to take cognizance of an offence, even after having accepted a final report by the police. It has also been laid down that where the police has not submitted a charge-sheet, but has submitted a final report, the case cannot be treated as a police challani case and the procedure of such cases would not be attracted, and the case will be treated as a complaint case and the procedure for a complaint case will be followed. The learned Sessions Judge while disposing of the revision directed against the impugned order of the Magistrate has referred to the case of Kamlapati Trivedi Vs. State of West Bengal, . In fact, this ruling is an authority for a totally different proposition. It would appear that a first information report was lodged and the police submitted a final report stating that the first information report is false and the Magistrate also accepted the final report. A prosecution was then launched by the aggrieved persons against the maker of the report u/s 211, IPC. A plea was raised that as the Magistrate accepted the final report, the order was a judicial order, and consequently for launching any prosecution the compliance of Section 195(1)(b), Code of Criminal Procedure, is requisite and stood as a bar to a private complaint and only the Magistrate could file a complaint in the case. In that background, after considering the relevant provisions of Section 195, Code of Criminal Procedure it was held that whatever order is passed by the Magistrate in the connection of acceptance of final report is a judicial order. In the case of Abhinandan Jha (supra) there was a protest petition against the final report and the Magistrate gave direction for submission of a charge-sheet; and as per observations made in paragraph 21 of that judgment while it was held that such direction could not be given, it was further observed that ''it is open to the Magistrate to treat the respective protest petition as complaint and take further proceedings''. In view of such observation actually the protest petition is to be treated as a complaint and the entire procedure of a complaint case has to be observed. From the summoning order it would appear that it is a case of sessions trial, and, consequently the application of Section 204. Code of Criminal Procedure, would also be attracted and as provided u/s 202(2) Code of Criminal Procedure, all the witnesses, which the person making the protest petition desires to produce, shall be examined. In fact, when the protest petition is to be treated as a complaint u/s 204(2) Code of Criminal Procedure, the person concerned has to be called upon to furnish a list of prosecution witnesses and they all then have to be examined u/s 202(2) Code of Criminal Procedure, and only then any order summoning the accused persons can be passed.

In the result, I find that the aforesaid impugned orders of the Magistrate and the Sessions Judge cannot be sustained and such orders are quashed, but at the same time the proceedings as such cannot be quashed and a direction has to be given to the Magistrate to first secure a list of witnesses, which the opposite party No. 2 desired to examine in support, and examine them all and only then pass a suitable order in the light of the evidence produced before him. In fact, the procedure laid down in the case of Dinesh Chandra Sinha v. Rahmat Ullah 1981 AWC 210 Division Bench has to be followed.

The petition is, thus, partly allowed and while the aforesaid impugned orders are quashed, the criminal proceeding against the Petitioners as such is not quashed and only a direction is given that the Magistrate should follow the correct procedure, as laid down earlier.