Bhagwan Prasad Trivedi vs State of U.P.& Ors.

O. P. Jain, J.—This is an application under Section 482, Cr. P. C. for quashing the proceedings in criminal case No. 684/91, under Sections 380/506, I.P.C. and the summoning order dated 1131991 passed by VII Metropolitan Magistrate, Sisamau, district Kanpur Nagar.

The brief facts of the case are that the applicant No. 1 Bhagwan Prasad Trivedi and respondent No. 2 Hari Prasad Trivedi are real brothers and are residing in separate portions of the same house. The respondent No. 2 lodged a first information report on 2131990 against the present applicants in which he alleged that on 2031990 at about 830 p.m. Bhagwan Prasad Trivedi and his wife and applicant Dinesh Kumar took away some article worth Rs. 15,000/ from the possession of Hari Prasad Trivedi after breaking open his lock, it was also alleged that Hari Prasad''s wife objected to it but the applicants threatened her. The copy of F.I.R. is annexure3 to the petition.

The police submitted a final report on 3131990 on the ground that a partition suit is already pending between the applicants and the case is instituted after exaggerating the facts. The learned Magistrate, on the basis of the protest petition filed by Hari Prasad Trivedi on 2121991 passed an order on U391 summoning the accused for 2541991. The summoning order is annexure6 to the petition.

In this case counter and rejoinder affidavits have been exchanged and final arguments of both the sides were heard.

The first contention on behalf of the applicants was that the police had submitted a negative report and, therefore, cognizance could not have been taken. But this contention is wrong because it has been held in 1989 AWC 386 (SC)M/s. India Garat Pvt. Ltd. v. State of Karnataka and another in which it has been held that a Magistrate is entitled to take cognizance of an offence under Section 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. It was further held that the Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202, Cr.P.C. though it is open to him to act under Section 200 or 202, Cr.P.C. also.

The second contention is that admittedly applicant No. 1 and respondent No. 2 are real brothers and a partition suit is pending between them. Therefore, it is a case of civil nature and no criminal case is made out. This contention has no force and the mere fact that a civil suit between the parties is pending does not unnecessarily exclude the jurisdiction of criminal courts. For the exercise of powers under Section 482, Cr.P.C. the contents of the F.I.R. would be presumed to be true. It was alleged by the complainant that the articles taken away by the present applicants were in the exclusive possession of respondent No. 2. If respondent No. 2 succeeds in proving this allegation the matter assumes criminal nature.

The third contention is that before issuing the summoning order the Magistrate has not given any reason as to why he has differed from the conclusion arrived at by the police. In my opinion, for taking cognizance the Magistrate is not required to give detailed reasons. The order dated 1131993 Annsxure6 to the petition shows that after perusing the statement of the complainant the Magistrate was satined that it is a fit case for taking cognizance.

The last contention is that the learned Magistrate issued notice to the complainant as required by (sic) Bhagwant Singh v. Commissioner, AIR 1985 ciC 1285 but no notice was given to the accused who are applicants here. In this connection the learned counsel for the applicants has relied on Gajendra Kumar Agarwal v. State of U.P. 1994 UP CrR 308: 1994 JIC 752 (All) in which a single Judge of this Court has held that once a final report was filed it will be unfair to hear only the person filing the protest petition but not the accused. The learned Judge has further observed that both the parties should be heard as that procedure would be fair to the accused and complainant. On the basis of this ruling the learned counsel for the applicants has argued that it was incumbent on the learned Magistrate to have issued notice to the accused before taking cognizance.

In my opinion the ruling relied upon by the learned counsel does not apply to the facts of the case because the summoning order Annexure6 clearly shows that the Magistrate has not taken, cognizance merely on the final report submitted by the police. Before taking cognizance the learned Magistrate has recorded the statement of the complainant and has also relied on the affidavit submitted by the complainant. The summoning order does not say that cognizance is being taken under Section 190(1)(b), Cr.P.C. Under the circumstances of the case decision of the apex court in AIR 1963 (SC) Chandra Deo Singh v. P. C. Base is applicable in which it has been held that an accused person does not come into the picture at all till process is issued. This ruling is cited in Gajendra Kumar Agarwal''s case.

In view of the above discussion it cannot be said that the summoning order dated 1131991 is either illegal or without jurisdiction. However, it is clear that the Magistrate has proceeded in the matter on complaint and has taken cognizance after recording the statement of the comlainant. Therefore, it is directed that the Magistrate will adopt the procedure laid down under Section 244, Cr.P.C. for cases instituted otherwise than on a police report.

The application under Section 482, Cr.P.C. is partly allowed. The stay order dated 361993 is vacated.

Application partly allowed.