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

Ashok Srivastava, J.—This petition u/s 482 Cr.P.C. has been preferred by the petitioner Arvind Kumar Singh feeling aggrieved by the judgment and order dated 22.8.2005 passed by learned Sessions Judge, Pratapgarh in Criminal Revision No. 342 of 2004.

The brief facts which need mentioning here are that on 14.03.2004, the complainant-petitioner Arvind Kumar Singh was going to his village in a car alongwith his family members. When they reached near the place of occurrence at about 7.30 P.M., another car coming from the opposite direction intercepted the car of the complainant and forced it to stop. Thereafter opposite party Nos. 2 to 4 alongwith two other persons came out from their car. They were armed with iron rods, hockey sticks and a revolver which was held by opposite party No. 2. One Rajveer was also traveling with the complainant. The opposite parties No. 2 to 4 pulled Rajveer out of the car and thereafter assaulted him mercilessly. The opposite party No. 2 Vipin Chandra Sharma fired at Rajveer causing injury to him. The injured, the complainant and his family members raised an alarm upon which a number of people assembled there. Thereafter the assailants ran away from the place of occurrence in their car. The complainant went to the police station Udaipur to lodge a report but his F.I.R. was not registered there. Thereafter they rushed to Raebareli where the injured Rajveer was given treatment. On the next date of the incident, the complainant got the injured medically examined at the District Hospital, Pratapgarh where his injury report was prepared. He informed the Superintendent of Police of the district about the incident but no action was taken against the accused persons. Thereafter the complainant approached the court of the Magistrate at Pratapgarh with an application u/s 156(3) Cr.P.C. Under the orders of the Court, an F.I.R. was lodged at the police station and the matter was investigated. After the investigation of the case, the investigating officer was of the opinion that there was no substance in the case and as a consequence he submitted a final report in the court. A notice was issued to the complainant who appeared before the court and filed a protest petition. After due hearing, the learned Magistrate rejected the final report and summoned four persons namely Vipin Chandra Sharma, Manohar Lal, Vinay Kumar Sharma @ Ram Neel Sharma and Anjani Kumar u/s 307/34 I.P.C. Opposite party Nos. 2 to 4 felt aggrieved by this summoning order and preferred a revision before the learned Sessions Judge, Pratapgarh. After hearing both the parties, the learned Sessions Judge allowed the revision and set aside the summoning order passed by the learned Magistrate on 27.10.2004 and remanded back the matter to him for considering the matter afresh keeping in view the directions given by him in the revisional judgment. Feeling aggrieved by the judgment and order passed by learned Sessions Judge, the present petition has been filed.

Notices were issued to the opposite parties and they have put in their appearance and contested the case.

I have heard Sri I.B. Singh learned senior counsel for the petitioner, Sri Girish Chandra Sinha, learned Counsel for opposite parties and learned A.G.A.

It has been submitted from the side of the petitioner that the learned Judicial Magistrate had taken the cognizance of the case after perusing the statements recorded by the police u/s 161 Cr.P.C. of the complainant as well as other eye witnesses and injury report of the injured Rajveer Singh and when learned Magistrate was satisfied that there was substance in the matter, he, after due consideration, summoned the accused persons named in the F.I.R. It has been further submitted that it is well settled principle of law that sifting of evidence is not required by the court at the time of taking cognizance for summoning the accused persons of the case and the only requirement of law is that the Magistrate taking cognizance should be satisfied, prima facie, that there is sufficient ground to proceed against the accused persons. It has been further submitted that the revisional court has committed manifest error of law in setting aside the order on the ground that the learned Magistrate did not take into account the statements of all the witnesses examined by the investigating officer of the case. It has also been contended that determination of veracity of evidence or the statements of the witnesses are subject matter of trial and at the time of taking cognizance it is not required when the Magistrate is satisfied with the evidence contained in the case diary. It has also been submitted that the order passed by the learned Magistrate was a sounded order and it should not have been interfered with by the learned Sessions Judge in revision.

Refuting the arguments advanced by the petitioner, Mr. Sinha, learned Counsel for opposite party Nos. 2 to 4, has said that it was the duty of the learned Magistrate to examine the statements of all the material witnesses before deciding whether the accused persons should be issued summons or not. He has further submitted that from the perusal of the order passed by the learned Magistrate it is evident that before passing the said order, the learned Magistrate has failed to apply his judicial mind. He has further submitted that no one should be allowed to misuse the authority of the court in order to harass the accused persons and it is the duty of the Magistrate to look into this aspect of the case also before summoning the accused persons. It has further been submitted that there was absolutely no material before the learned Magistrate on the basis of which he was of the opinion that the accused persons should be summoned. In the end it has been submitted that there is no force in the revision and the same may be dismissed.

I have gone through the provisions of law as shown by learned Counsel for the parties. I have also gone through, with caution, the order passed by the learned Magistrate on 27.8.2004 and the impugned order dated 22.8.2005 passed by learned Sessions Judge in revision.

From the perusal of the judgment passed by the learned Sessions Judge it is evident that while discussing the various provisions of law he came to the conclusion that when a case is registered and investigated by the investigating officer and a final report is submitted by him, the Magistrate has only four options and the Magistrate is at liberty to adopt any one of the courses open to him. The learned Sessions Judge has further said in his judgment that before adopting the said mode, the learned Magistrate is required to apply his judicial mind to the facts emerging from the investigation by taking into account the statements of the witnesses examined by the police and the materials collected by it. The learned Judge has also opined that the Judicial Magistrate should not be an instrument of oppression or needless harassment to the accused as there lies the responsibility and duty upon a Magistrate to find out whether the concerned accused should be held legally responsible for the offence charged for. The learned Sessions Judge has mentioned in his judgment a number of rulings of the Apex Court and this Court also.

What I find, from the perusal of the judgment of learned Sessions Judge that he has failed to apply the established principle of law in a proper and logical manner. From his conclusion, which is on the last but one page of his judgment, the learned Sessions Judge has committed a manifest error of law while applying the law in the facts and circumstances of the instant case.

The Apex Court in H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), Chandigarh v. State (Union Territory of Chandigarh) has said that "a magistrate who on receipt of a complaint, orders an investigation u/s 156(3) and receives a police report u/s 173(2), may, thereafter, do one of three things: (i) he may decide that there is no sufficient ground for proceeding further and drop action; (ii) he may take cognizance of the offence u/s 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (iii) he may take cognizance of the offence u/s 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses u/s 200. If he adopts the 3rd alternative he may hold or direct an inquiry u/s 202 if he thinks fit. Thereafter, he may dismiss the complaint or issue process, as the case may be." In latter part of para 7, the Apex Court has held that "Similarly if a police report mentions that half a dozen persons examined by them claim to be eyewitnesses to a murder but that for various reasons the witnesses could not be believed, the magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. It could not be said in such a case that he was taking cognizance on suspicion."

In Jagdish Ram Vs. State of Rajasthan and Another, the Apex Court has said that "It is well settled that notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusive within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the state of inquiry. Further, at the stage of issuing the process to the accused, the Magistrate is not required to record reasons."

It is not mandatory for the Magistrate always to accept the final report submitted by the police. There can and has to be an independent examination and application of mind by the judicial officer. It is always open to the Magistrate that on receiving the police report the Magistrate may take cognizance of the offence u/s 190(1)(b) and issue process straightway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not.

As mentioned above, at the stage of issuing process to the accused persons to appear before the court for further proceeding in the matter, the Magistrate has to be satisfied only to the extent whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. This is the distinction which makes the difference. Whether the evidence is adequate for supporting the conviction is not to be seen at the time of summoning the accused. It could only be determined at the trial. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons as has been held by the Apex Court in Dy. Chief Controller of Imports and Exports Vs. Roshanlal Agarwal and Others,

From the perusal of the order passed by the learned Magistrate while summoning the accused of that case, it is evident that the learned Magistrate has placed reliance on the statements given by the complainant Arvind Kumar Singh, the eye witnesses Rajendra Kumar Singh and Himmat Singh and the injured Rajveer Singh. He has also taken into consideration the injury report which was available for his perusal in the case diary. The learned Magistrate has specifically said in his order that on the basis of the statements of the complainant, the injured and eye witnesses recorded u/s 161 Cr.P.C. and the injury report he was prima facie satisfied that there is substance in the matter on the basis of which he should proceed and in these circumstances he had decided to issue process for summoning the accused persons named in the F.I.R.

The learned Counsel for opposite party Nos. 2 to 4 has argued before this Court that the learned Magistrate while passing the order impugned in the revision, has taken into consideration a lot of extraneous material which were not available before him in the case diary. The learned Counsel has further contended that the learned Magistrate has also considered the evidence filed before him in the form of affidavits by the complainant alongwith his protest petition but I find that there is nothing in the order passed by learned Magistrate that he had taken into consideration any such material while passing the summoning order.

My attention has been drawn from the side of opposite party Nos. 2 to 4 towards the case reported in Punjab National Bank and others Vs. Surendra Prasad Sinha, with special reference to Para 6 of it ? which is as follows:

It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, The Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta.

The facts of the case before this Court and that of Surendra Prasad Sinha''s case are not similar to each other nor of the same nature. It has been submitted from the side of opposite party Nos. 2 to 4 that the investigating officer of the case had also made a general inquiry in the locality where the alleged incident is said to have taken place; but as many as eight persons had informed him that no incident of the type had taken place in the locality. It has further been submitted that the learned Magistrate should have taken this fact into consideration but he has not done so.

I have given due consideration to this contention advanced by Sri Sinha, learned Counsel for opposite party Nos. 2 to 4. But I find myself unable to accept this contention.

The incident had taken place on a highway which may have lasted for about 5 to 7 minutes. If the eight persons, examined by the investigating officer could not notice any such incident it cannot be said that no such incident had taken place. The statements given by those eight persons is negative in nature and they can not carry such weight so as to make positive statements of four witnesses (including the injured) who have supported the version given by the complainant, ineffective and false altogether. Veracity of evidence or truthfulness of statements can only be ascertained during trial of the case when the witnesses are subjected to the test of cross-examination. As a passing remark it can be said that on the basis of reliable and trustworthy statements of witnesses of facts may secure conviction.

I have examined the facts available on the record of the case. From the perusal of the order of the learned Magistrate and the learned Sessions Judge I do not find that there exists any material which may indicate that the petitioner is using the court of the learned Magistrate as an instrument for oppression or harassment to the accused persons of the case.

Further, I do not find any force in the contention of the learned Counsel for opposite party Nos. 2 to 4 that the Magistrate has not applied his judicial mind to the facts and circumstances of the case. Though the learned Magistrate was not bound to pass a detailed summoning order despite he has passed a speaking order which indicates the reasonings which have compelled him to arrive at the decision taken by him.

It has also been argued from the side of opposite party Nos. 2 to 4 that at the time of the alleged incident the opposite parties were/away on duty in Delhi, Rajasthan and Punjab and it was impossible that they may be present at the place of incident which is in Pratapgarh district of Uttar Pradesh.

In my opinion this plea of alibi is a defence plea and this too can be taken at the stage of trial only. Therefore, this contention is of no help to the opposite party Nos. 2 to 4.

I have also examined the order passed by this Court on 5.6.2007 in Criminal Misc. Application No. 12516 of 2007, Mohd. Yusuf and Ors. v. State of U.P. and Anr.. An uncertified copy of this order downloaded from internet has been filed by the learned Counsel for opposite party Nos. 2 to 4. Authenticity of this copy has not been challenged from the side of the petitioner. Therefore, this order has been considered by this Court during the course of hearing of the case in hand.

The facts of Yusuf''s case (supra) and the law laid down in it have absolutely no relevance in the case before me. Therefore, this case is also of no help to the opposite party Nos. 2 to 4.

On the basis of the above discussion, I am of the view that there is force in this petition and it should be allowed.

The petition is allowed. The impugned judgment and order dated 28.8.2005 passed by learned Sessions Judge, Pratapgarh in Criminal Revision No. 342 of 2004 is quashed and set aside.

The learned Magistrate concerned is directed to proceed with the case in pursuance of his order passed on 27.8.2004 in accordance with law. He is further directed to expedite the matter and dispose of the same at the earliest possible as the alleged incident has taken place as back as on 14.3.2004.