Arvind Kumar and Others vs State of U.P. and Another

Ravindra Singh, J.—This application has been filed by the applicants Arvind Kumar, Laxmi Narain, Deen Dayal alias Mukesh Kumar, Govind Ram, Nek Singh and Prem Kumar with a prayer to quash the order dated 30.1.2008 passed by the learned C.J.M., Hathras in Criminal Case No. 1036 of 2003 whereby the application u/s 190(1)(b), Cr. P.C. filed by O.P. No. 2 Mahesh Chand Vasistha has been allowed and the applicants have been summoned to face the trial for the offence punishable under Sections 323, 504, 506, 363 and 364, I.P.C. and to quash the entire proceedings of Criminal Case No. 1036 of 2003, State v. Arvind Kumar and Ors. pending in the court of learned C.J.M., Hathras.

The facts in brief of this case are that an application dated 30.4.2003 u/s 156(3), Cr. P.C. has been filed by the O. P. No. 2, the same was allowed by the learned C.J.M., Hathras on 30.4.2003 directing the officer-in-charge of P. S. Kotwali, Hathras to lodge the F.I.R. and investigate the same, in pursuance of this order dated 30.4.2003 the F.I.R. was registered at P. S. Kotwali, Hathras on 7.5.2003 at 1.10 p.m. in Case Crime No. 86 of 2003 under Sections 323, 504, 506, 363 and 364, I.P.C. in which the applicants Govind Ram, Arvind Kumar, Laxmi Narain, Deen Dayal, Nek Singh and Prem Kumar were named as accused but after investigation the charge-sheet dated 14.5.2003 was submitted by the Investigating Officer in the court of learned C.J.M., Hathras against the applicants Arvind Kumar alias Pappu, Mukesh Kumar alias Deen Dayal, Nek Singh and Prem Kumar for the offence punishable under Sections 323 and 504, I.P.C. but the applicants Laxmi Narain and Govind Ram were charge-sheeted. On the basis of the charge-sheet submitted by the Investigating Officer the learned C.J.M. has taken cognizance on 5.6.2003. O. P. No. 2 filed a Criminal Revision No. 104 of 2003 against the above mentioned order dated 5.6.2003, the same was dismissed on 22.1.2005 by the learned Additional Sessions Judge/ F.T.C. II, Hathras, thereafter O. P. No. 2 moved an application dated 12.10.2006 in the Court of learned C.J.M., Hathras with a prayer that the applicants Govind Ram and Laxmi Narain, who were named in the F.I.R. and sufficient material has been collected by the Investigating Officer against them also during investigation, may also be summoned to face the trial. Thereafter, due to non-appearance of O. P. No. 2 and his counsel, the same was rejected by the learned C.J.M., Hathras on 2.6.2006. Thereafter, an application dated 12.12.2007 u/s 190(1)(b), Cr. P.C. has been filed by O. P. No. 2 with a prayer that four accused who have been charge-sheeted, may be summoned under Sections 323, 504, 506, 363 and 364, I.P.C. because the charge-sheet was submitted against them only under Sections 323, 504 and 506, I.P.C. and the applicant Govind Ram and Laxmi Narain may also be summoned to face the trial by way of amending the order of cognizance taken by the learned Magistrate concerned, the same was dismissed by the learned C.J.M., Hathras on 23.4.2007. It was challenged by O. P. No. 2 before this Court by way of filing Criminal Application No. 20257 of 2007, the same was disposed of on 20.6.2007 in which the order dated 23.11.2004 was set aside and the learned C.J.M. was directed to pass a fresh order in accordance with the provisions of law, thereafter, the learned C.J.M., Hathras has allowed the application filed by the applicants on 30.1.2008 and the applicants were summoned to face the trial for the offence punishable under Sections 323, 504, 506, 363 and 364, I.P.C., being aggrieved from the order dated 30.1.2008 the present application has been filed by the applicants.

Heard Sri S. N. Sharma and Atul Sharma, learned Counsel for the applicants, learned A.G.A. for the State of U.P. and Sri N. K. Trivedi, learned Counsel for O. P. No. 2.

It is contended by the learned Counsel for the applicants that in the present case after investigation the Investigating Officer has submitted charge-sheet only against four applicants namely Arvind Kumar, Deen Dayal alias Mukesh Kumar, Nek Singh and Prem Kumar under Sections 323 and 504, I.P.C. on which the learned C.J.M., Hathras has taken cognizance on 5.6.2003. The learned Magistrate concerned has taken cognizance for the offence punishable under Sections 323 and 504, I.P.C. ; the learned Magistrate concerned has not issued the process against the applicants Laxmi Narain and Govind Ram, therefore, the learned C.J.M., Hathras was not empowered to take cognizance under Sections 506, 363 and 364, I.P.C. also on the application filed by O. P. No. 2.

It is further contended that after perusing the police report the learned C.J.M., Hathras has taken cognizance of the alleged offence punishable under Sections 323 and 504, I.P.C. only against four persons, but the process was not issued against the applicants Laxmi Narain and Govind Ram because they were not summoned by the learned Magistrate concerned, once the learned Magistrate concerned has taken the cognizance and not issued the process against the applicants Laxmi Narain and Govind Ram, it was not open to the learned Magistrate concerned to issue process against the applicants Laxmi Narain and Govind Ram also because at subsequent stage they may be summoned in exercise of the power conferred u/s 319, Cr. P.C. In the present case, the learned C.J.M. has committed manifest error of law by taking cognizance of the alleged offence under Sections 323, 504, 506, 363 and 364, I.P.C. whereas the charge-sheet was submitted only under Sections 323 and 504, I.P.C. on which the learned Magistrate concerned had already taken cognizance for the offence punishable under Sections 323 and 504, I.P.C. against four applicants and the learned Magistrate concerned has committed manifest error by way of issuing process against the applicants Laxmi Narain and Govind Ram also, who were not charge-sheeted by the Investigating Officer and the process was not issued against them on earlier occasion at the time of taking the cognizance because the process was issued against four applicants who were charge-sheeted.

It is further contended that the learned C.J.M., Hathras has illegally allowed the application filed by O. P. No. 2 u/s 190(1)(b), Cr. P.C., the impugned order dated 31.1.2008 passed by the C.J.M., Hathras is illegal and is liable to be set aside.

In reply to the above contentions it is submitted by the learned A.G.A. and Sri N. K. Trivedi, learned Counsel for O. P. No. 2 that in the present case Investigating Officer has not done the fair investigation and submitted the charge-sheet for the offence punishable under Sections 323 and 504, I.P.C. only whereas on the basis of material collected by the Investigating Officer prima facie offence under Sections 506, 363 and 364, I.P.C. was also made out against the applicants. The I.O. deliberately not submitted the charge-sheet against the applicants Laxmi Narain and Govind Ram whereas on the basis of the material collected by the I.O. there was sufficient material against them also to show that they have participated in the commission of the alleged offence. The learned C.J.M. concerned has taken cognizance on the basis of the police report without applying his mind and the cognizance was taken in a routine manner whereas there was sufficient material to take cognizance under Sections 504, 323 and 364, I.P.C. against all the applicants. Thereafter, the applicants moved an application to take proper cognizance u/s 190(1)(b), Cr. P.C. against four applicants, who were charge-sheeted and earlier two applicants also were charge-sheeted but without perusing and considering the material collected by the Investigating Officer the learned C.J.M. rejected the application filed by the applicant on 23.4.2007, the order dated 23.4.2007 was set aside by this Court on 20.8.2007 and the learned C.J.M., Hathras was directed to pass a fresh order in accordance with the provisions of law, thereafter, the learned C.J.M. perused and considered the material collected by the Investigating Officer and the learned C.J.M. came to the conclusion on the basis of the material collected by the Investigating Officer that prima facie offence under Sections 323, 504, 506, 363 and 364, I.P.C. is made out against all the applicants. The learned C.J.M., Hathras has summoned the applicants Laxmi Narain and Govind Ram also who were charge-sheeted for such offence, the learned Magistrate concerned is empowered to take cognizance for the offence which are constituted on the basis of material collected by the Investigating Officer even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the Investigating Officer, there is no bar u/s 190(1)(b), Cr. P.C. that once the process is issued against some accused but on the next date the Magistrate cannot issue the process to some other persons also, against whom there is same material on the record but the name is not included in the charge-sheet as an accused because the cognizance is taken of an offence not of an offender, once the learned Magistrate has taken cognizance of an offence, the learned Magistrate is duty bound to find out who the offender really are? Once the learned Magistrate came to the conclusion that apart from the persons sent up by the I.O., some other persons are also involved, the learned Magistrate concerned is duty bound to proceed against those persons also.

The summoning of the additional accused is part of the proceedings initiated by taking cognizance of an offence. In support of this contention the case of Raghubans Dubey v. State of Bihar (V) 1968 (5) ACC 69 and S.W.I.L. Ltd. and Ors. v. State of Delhi and Anr. (XLII) 2001 ACC 591: 2001 (3) ACR 1950 have been cited.

From the perusal of the record and considering the submissions made by the learned Counsel for the applicants and the learned A.G.A. and learned Counsel for O. P. No. 2, it appears that in the present case, issued for consideration are :

Whether the learned Magistrate concerned is empowered to take cognizance at subsequent stage for the offence in which the cognizance was not taken at earlier occasion, on the basis of the police report?

Whether the learned Magistrate concerned can issue the process against the persons, who are charge-sheeted, whereas the named in the F.I.R.?

The above mentioned issues have been properly dealt with by the Hon''ble Supreme Court of India in the case of Raghubans Dubey v. State of Bihar (V) 1968 ACC 69 , the same view has also been taken in the case of S.W.I.L. Ltd. and Ors. v. State of Delhi and Anr. (XLIII) 2001 ACC 591: 2001 (3) ACR 1950 in its paragraphs 5 and 6, which read as under :

In our view, from the facts stated above it is clear that at the stage of taking cognizance of the offence, provisions of Section 190, Cr. P.C. would be applicable. Section 190 inter alia provides that ''the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence''. As per this provision, the Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate u/s 204, Cr. P.C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the F.I.R. and the statements recorded by the police officer and other documents tendered along with charge-sheet. Further, upon receipt of police report u/s 173(2), Cr. P.C., the Magistrate is entitled to take cognizance of an offence u/s 190(1)(b), even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the Investigating Officer and independently applying his mind to the facts emerging from the investigation by taking into account, the statement of the witnesses examined by the police. At this stage, there is no question of application of Section 319, Cr. P.C. Similar contention was negatived by this Court in Raghubans Dubey v. State of Bihar by holding thus :

In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders ; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.

Further, in the present case, there is no question of referring to the provisions of Section 319, Cr. P.C. That provision would come into operation in the course of any enquiry into or trial of an offence. In the present case, neither the Magistrate was holding enquiry as contemplated u/s 2(g), Cr. P.C. nor had the trial started. He was exercising his jurisdiction u/s 190, Cr. P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet.

The facts of the present case are squarely covered by the view taken by the Hon''ble Supreme Court in the above mentioned case, the learned Magistrate concerned is empowered to take cognizance of some other offence also on the same police report on which at the earlier occasion, the cognizance was not taken and the learned Magistrate is empowered to issue process against some other persons also, who have not been charge-sheeted but there is sufficient material in the police report showing their involvement because the cognizance of offence is taken not of the offender, if it appears that there is sufficient material against any person, the process may be issued against that person also at the later stage also without being biased by earlier order of cognizance which has been taken immediately after submission of the police report. In the present case also, the learned C.J.M., Hathras has taken cognizance of the offence under Sections 323, 504, 506, 363 and 364, I.P.C. at the later stage whether such application has been filed by O. P. No. 2 and the process has been issued against the applicants Laxmi Narain and Govind Ram also, who were charge-sheeted, even at earlier occasion, the process was not issued against them, therefore, the learned C.J.M., Hathras has not committed any error in passing the impugned order dated 30.1.2008, which require no interference by this Court, therefore, the prayer for quashing the impugned order dated 30.1.2008 is refused, there is no illegality in the prosecution of the applicants, therefore, the prayer for quashing the proceedings in Criminal Case No. 1036 of 2003 pending in the court of learned C.J.M., Hathras is refused.

However, considering the facts and circumstances of the case, it is directed that in case the applicants have not been released on bail, and they appear before the Court concerned within 30 days from today and apply for bail, the same shall be heard and disposed of expeditiously in accordance with the provisions of law.

With this direction this application is finally disposed of.