Ashok Kumar vs Shyam Lal and Others

R.P. Shukla, J.—This revision is directed against the judgment and order, dated 18-1-1983, passed by the Second Additional Sessions Judge, Jaunpur, in Criminal Revision No. 56 of 1982, thereby he set aside the order, dated 9-12-1981, passed by the Fourth Judicial Magistrate, Jaunpur, summoning the present opposite-parties to stand their trial under Sections 147/323 IPC, in Criminal case No. 66 of 1981.

Briefly stated the facts of the case are that Ashok Kumar, the present applicant, lodged a first information report at Police-Station Rampur, district Jaunpur, against Madan Lal alias Pawaroo, Subhash Chandra, Gaya Prasad and the present opposite parties. After investigation, the police charge sheeted Subhash Chandra, Madan Lal alias Pawaroo and Gaya Prasad only and left out the opposite parties. The Magistrate took the cognizance of the offence on the basis of the charge-sheet on 6-1-1982 and summoned the charge-sheeted accused. On 9-9-1981, Ashok Kumar, the first informant, appeared before the Magistrate and moved an application along with the affidavits of himself, Om Prakash and Arjun Singh, alleging that they stated even before the Investigating Officer about the participation of the accused who have not been charge-sheeted by the police. They should, therefore, be summoned for trial. The application and the affidavits are in the nature of protest petition against the police not charge-sheeting the aforesaid accused. The Magistrate heard the parties and found that Ashok Kumar, Shyam Lal, Samunder, Madan Lal son of Inam, Bechan and Raj Narain witnesses did state u/s 161, Code of Criminal Procedure about the participation in the occurrence by the accused not charge-sheeted by the police and, therefore, he straightaway issued summons requiring them to appear before him on 3-1-1982.

Aggrieved by this order of the Magistrate, the accused preferred revision u/s 397, Code of Criminal Procedure before the Sessions Judge. The Sessions Judge allowed the revision and set aside the order of the Magistrate and sent the case back to the Magistrate with the direction that he should record some evidence and then summon the accused u/s 319, Code of Criminal Procedure.

Aggrieved by this order of the Sessions Judge, Ashok Kumar has preferred this revision.

I have heard the learned Counsel for the parties and have perused the record.

The contention of the learned Counsel for the applicant is that the order of the Magistrate, summoning the opposite parties, was legal, correct and proper and, therefore, the learned Second Additional Sessions Judge wrongly set it aside and that Section 319, Code of Criminal Procedure applied to a person other than the accused in the case.

Learned Counsel for the opposite-parties contended that the Magistrate considered the protest petition and, therefore, he ought to have followed the procedure of a complaint case that is he ought to have recorded the statements of witnesses u/s 202, Code of Criminal Procedure and then only he could summon the accused.

After the pronouncement of the Supreme Court in Abhinandan Jha and Others Vs. Dinesh Mishra, and in H.S. Bains v. The State (Union Territory of Chandigarh) 1980 AWC 619 it is now a settled law that the Magistrate is not bound by the conclusions of the police report. If he does not accept the police report, he can straightaway issue the summons and take the cognizance of the offence u/s 190(1)(b) of the Code of Criminal Procedure. In the instant case, it appears that the Magistrate, in a routine manner, summoned the accused who were charge-sheeted by the police and did not care to find out from the case diary if some more persons participated in the crime. When the first informant appeared and moved the protest petition and the affidavits, the Magistrate applied his mind and discovered from the case diary that the witnesses have stated u/s 161, Code of Criminal Procedure about the participation of the opposite parties in the occurrence. The cognizance of the offence is taken not of the offender. He had already taken cognizance of the offence; but while summoning the offenders, he left out some accused whom he summoned after the aforesaid protest petition Thus, summoning of the additional accused is part of the proceedings initiated by taking cognizance of the offence. The Magistrate, in this case, initiated the proceedings on 6-1-1982 when he took the cognizance of the offence and summoned some offenders and summoned the additional accused on 9-12-81 in continuation of the same proceedings.

In Phulgend v. State 1978 ACR 291 it has been held that the Magistrate was not bound to treat the protest petition as a complaint, In Gajadhar Singh v. Mahesh Chandra 1981 ACR 218 also the same view that even though there may be a protest petition against the police report, the case was cognizable by the Magistrate u/s 190(1)(b), Code of Criminal Procedure has been held. In Basudeo v. State of U.P. 1983 AWC 982 : 1983 ACR 513 it was held that even assuming that the protest petition filed in the case fulfilled the requirements of the defintion of the word "complaint" under the Code of Criminal Procedure and the Magistrate applied his mind to the contents of the petition, it could not be said that he has taken the cognizance on a complaint as u/s 190(1)(a), Code of Criminal Procedure as he had not followed the procedure for proceeding in a particular way as indicated in the subsequent provisions of Chapter XV of the Code of Criminal Procedure. In the instant case also, the Magistrate has rightly taken cognizance u/s 190(1)(b), Code of Criminal Procedure on the police report though he has referred the protest petition and the affidavits filed by Ashok Kumar and other witnesses.

In Bhagwant Singh v. Commissioner of Police 1986 AWC 26 : 1986 ACR 26 it has been held that in cases initiated on the first information report lodged by the informant u/s 154(2), Code of Criminal Procedure if the officer-in-charge of the police station refuses to take cognizance, he was obliged to inform the first informant that his case would not be investigated u/s 173(2)(ii) of the Code of Criminal Procedure. The Investigating Officer was obliged to communicate the information, the action taken by him and the report forwarded by him to the Magistrate. If the Magistrate refuses to take cognizance on such first information report and the report of the Investigating Officer, the informant has a right to be heard at the time of consideration of such report. It was further held that, on the principles of natural justice, even an injured person, who not be an informant, could appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. When the investigation is not complete on a report, as sent to the Magistrate by the Investigating Officer u/s 170 Code of Criminal Procedure the Magistrate could take cognizance of the offence u/s 190(1)(b), Code of Criminal Procedure. Similarly, when the facts disclosed by a police to constitute an offence, the case neither is covered by Section 190(1)(a) Code of Criminal Procedure nor Section 190(1)(c) Code of Criminal Procedure and must fall u/s 190(1)(b), Code of Criminal Procedure even though such report may not be report within the meaning of Section 173(2)(ii), Code of Criminal Procedure.

So there was nothing illegal on the part of the Magistrate in the instant case in issuing a process straightaway on the perusal of the case diary.

In view of the above discussions, the learned Sessions Judge wrongly directed the Magistrate to record some evidence and summon the accused u/s 319, Code of Criminal Procedure. He cannot be justified in setting aside the order of the Magistrate by which he summoned the additional accused that is the present opposite-parties.

In the result, the revision succeeds and is allowed. The order of the Second Additional Sessions Judge, dated 18-1-1983 is set aside and that of the Magistrate dated 9-12-1981, summoning the additional accused that is the opposite parties 1 to 4 is sustained.

Let the record be sent to the Court below at an early date for expeditious disposal of the case.

Revision allowed.