Deepak Yadav vs State of Uttarakhand

Dharam Veer, J.—Heard Mr. Mangal Singh Chauhan, learned Counsel for the applicant and Mr. Amit Bhatt, Additional Government Advocate for the State.

By means of this petition, moved u/s 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner/applicant has challenged the orders dated 5.3.2010 and 11.4.2010 passed by Chief Judicial Magistrate, Haridwar as well as the order dated 25.5.2010 passed by Sessions Judge, Haridwar.

Brief facts, giving rise to this petition, are that applicant Deepak Yadav got lodged a First Information Report at R.O.P. Khadhkadhi Kotwali Nagar Haridwar on 3.12.2009 against unknown person u/s 379 of IPC. After lodging of the FIR, the matter was investigated and on completion of investigation, final report was submitted by the police in the matter. On the final report, notices were issued to the applicant which was received by the applicant and the applicant then appeared before the court and he stated before the court that he has no objection with regard to the submission of final report and also requested to accept the final report. After hearing learned Counsel for the applicant, learned C.J.M., Haridwar, vide order dated 5.3.2010 accepted the final report. After some time, the applicant filed a protest petition against the final report before C.J.M., Haridwar, but the same was rejected vide order dated 11.4.2010 on the ground that the court has no right to recall its own order. Against that order, the applicant preferred a revision in the court of Sessions, which was also dismissed by learned Sessions Judge, Haridwar vide order dated 25.5.2010. Hence, this petition.

From a perusal of the impugned order dated 5.3.2010, it transpires that notice was issued to the applicant which was received by the applicant and the applicant also appeared before the court and he stated before the court that he has no objection with regard to the submission of final report and also requested to accept the final report. Then on 5.3.2010, the court accepted the final report and dropped the proceedings. It is settled law that when a report is placed before the Magistrate, he has the option of adopting one of the three courses i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police u/s 156(3). In a judgment rendered by Hon''ble Apex Court in the case of "Minu Kumari and Anr. v. State of Bihar and Ors." reported in (2006) 2 SCC (Cri.) 310, it has been held in para 11 of the said judgment that:-

When a report forwarded by the police to the Magistrate u/s 173(2)(i) is placed before him several situations arise: the report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation u/s 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he again has option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police u/s 156(3). The position is, therefore, now well settled that upon receipt of a police report u/s 173(2) a Magistrate is entitled to take cognizance of an offence u/s 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers u/s 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case u/s 190(1)(a) though it is open to him to act u/s 200 or Section 202 also. (See India Carat (P) Ltd. v. State of Karnataka)

In view of the above quoted judgment, it is clear that the three courses are open before the Magistrate (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police u/s 156(3). In the present case, the learned Chief Judicial Magistrate by adopting first course, accepted the final report and dropped the proceedings. Hence, in view of judgment of Hon''ble Apex Court in case of Minu Kumar (Supra), the order passed by the Chief Judicial Magistrate appears to be perfectly justified and as per law.

For the reasons recorded above, there is no force in the application. The C482 application, being devoid of merit, is dismissed in limine.