Kallu and Others vs State of U.P. and Another

Vijay Kumar Verma, J.—By means of this application under section 482 of the Code of Criminal Procedure (in short ''the Cr.P.C.''), the applicants 1. Kallu 2. Sanjeev Kumar 3. Gopal Sharan Tripathi 4. Sunil Kumar and 5. Ravi Tripathi have invoked inherent jurisdiction of this Court, for quashing the proceedings of criminal case No. 616 of 2009 (State vs. Kallu & others) arising out of case crime No. 254 of 2008, under sections 147, 148, 324, 504, 506, 379 IPC and 3 (1) (X) SC/ST Act, P.S. Bakewar, District Etawah and also to set aside the summoning order dated 14.12.2009 passed by the Additional Chief Judicial Magistrate, Court No. 4, Etawah.

By the impugned summoning order, the applicants named above have been summoned to face the trial under section 147, 148, 324, 504, 506, 379 IPC and 3 (1) (X) SC/ST Act, by the learned magistrate taking cognizance under section 190 (1) (b) Cr.P.C. after rejecting the final report and accepting protest petition filed by the complainant along with certain affidavits.

Shorn of unnecessary details, the facts emerging from the record leading to filing of this application, in brief, are that an FIR was lodged by the complainant Deepak Kumar, s/o Shiv Narayan at P.S. Bakewar, District Etawah (O.P. No. 2 herein) implicating the applicants Kallu, Sanjeev Kumar, Gopal Sharan Tripathi, Sunil Kumar and Ravi Tripathi as accused. A case under section 147, 148, 324, 504, 506, 379 IPC and 3 (1) (X) SC/ST Act was registered against the applicants at crime No. 254 of 2008. After investigation, final report was submitted by the investigating officer. On getting notice of the final report, the complainant filed protest petition against final report and in support thereof, certain affidavits and injury report were filed. On the basis of those affidavits and injury report, the learned Additional Chief Judicial Magistrate, court No. 4, Etawah, vide impugned order dated 14.12.2009, passed in F.R. Case No. 76 of 2009, after rejecting the final report, summoned the applicants to face the trial as stated hereinabove. Hence the applicants have invoked inherent jurisdiction of this Court to quash the impugned summoning order as well as entire proceedings of the case.

I have heard learned counsel for the applicants and AGA for the State.

The only submission made by learned counsel for the applicants was that the impugned summoning order is bad in law, as the applicants have been summoned by the learned magistrate on the basis of the affidavits, which have been filed by the complainant in support of the protest petition against final report, which is not permissible under law. The contention of the learned counsel was that cognizance under section 190 (1) (b) Cr.P.C. on the final report can be taken only, if there is material in the case diary to summon the accused persons and for this purpose extraneous material like affidavits filed by the complainant with the protest petition cannot be considered. It was also submitted by learned counsel that if material in the case diary is not sufficient to take cognizance against the accused persons and if any protest petition has been filed by the complainant against final report, then in that case, the procedure laid down under Chapter XV Cr.P.C. has to be followed by the magistrate after treating the protest petition as complaint. For these submissions reliance has been placed on the observations made by Division Bench of this Court in the case of Pakhando & others vs. State of U.P. & another 2001 (43) ACC 1096.

The learned AGA, on the other hand, submitted that the impugned order does not suffer from any illegality, as on submissions of the protest petition against the final report with affidavits, cognizance can be taken by the magistrate under section 190 (1) (b) Cr.P.C., if prima facie case to summon the accused persons is made out and since in the present case on the basis of the affidavits and injury report filed by the complainant in support of his protest petition against final report, prima facie case is made out against the applicants, hence the learned magistrate was fully justified in taking cognizance against the applicants.

Having given my thoughtful consideration to the rival submissions made by the learned counsel for the parties, I find force in the submission of the learned counsel for the applicants that on filing final report, cognizance cannot be taken on the basis of the extraneous material like affidavits filed in support of the protest petition against the final report and if the material in the case diary is not sufficient for summoning the accused persons, then the procedure laid down in Chapter XV Cr. P.C. has to be followed by the magistrate after treating the protest petition as complaint, as held by the Division Bench of this Court in Pakhando case (supra).

In the present case, the impugned order dated 14.12.2009 (annexure5) shows that the learned magistrate had taken cognizance under section 190 (1) (b) Cr.P.C. after rejecting the final report on the basis of the affidavits of the complainant and his witnesses and injury report filed by the complainant in support of the protest petition against final report, which is not permissible under law. This Court has held in the case of Mohammad Yusuf & others vs. State of U.P. and another 2008 (1) ACR 68 that the magistrate cannot take cognizance under section 190 (1) (b) Cr.P.C. on the basis of the protest petition and affidavits filed in support thereof without following the procedure laid down under Chapter XV Cr.P.C. the following observations made in para 11 are worth mentioning :

"whether the magistrate decides to take cognizance under section 190 (1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the casediary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under section 190 (1) (b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e. Protest petition and affidavits while taking cognizance under section 190 (1) (b) Cr.P.C. the impugned order is vitiated."

The Division Bench of this Court in the case of Pakhando and others Vs. State of U.P. and another (2001(43) ACC 1096) had the occasion to consider the matter regarding the procedure to be adopted by the Magistrate/Court on submission of the final report by the police. Having taken various authorities into consideration, the following observations have been made by the Division Bench in para 15 of the judgement at page 1100 of the report:

"From the aforesaid decisions, it is thus clear that where the Magistrate receives final report, the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:

(I). He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant'' or

(II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

(III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

As would appear from the observations made by this Court in Mohammad Yusuf case (supra), cognizance under section 190 (1) (b) Cr.P.C. cannot be taken on the basis of the affidavits filed in support of the protest petition against final report and if material in the case diary is not sufficient to take cognizance, then the procedure laid down under Chapter XV Cr.P.C. should be followed by the magistrate after treating the protest petition as complaint, as held by Division Bench of this Court in Pakhando case (supra). Therefore, in present case also, if the material in the case diary was not sufficient for summoning the accused persons to face the trial, then the protest petition filed by the complainant against the final report ought to have been registered as complaint and after following the procedure laid down in section 200 and 202 Cr.P.C. it would have decided whether the complaint should be dismissed or process should be issued. If after taking evidence under section 200 and 202 Cr.P.C., the magistrate decides to take cognizance against the accused persons, final report has to be rejected, but in any case, cognizance cannot be taken merely on the basis of affidavits or other material filed by the complainant in support of the protest petition against final report without following the procedure laid down under Chapter XV Cr.P.C., if the material in the case diary is not sufficient to take cognizance.

For the reasons stated hereinabove, the impugned summoning order cannot be sustained, as cognizance under section 190 (1) (b) Cr.P.C. has been taken by the learned magistrate after rejecting the final report on the basis of the injury report and affidavits filed by the complainant/O.P. No. 2 in support of the protest petition against final report without following the procedure laid down under Chapter XV Cr.P.C. Therefore, it would be in the interest of justice to send the case back to the court below for passing fresh order on the protest petition filed by the complainant against the final report treating the same as complaint and following the procedure laid down in Chapter XV Cr.P.C.

Consequently, the application under section 482 Cr.P.C. is allowed. Setting aside the impugned summoning order and quashing the proceedings of criminal case No. 616 of 2009 (State vs. Kallu & others), pending in the court of Additional Chief Judicial Magistrate, Court No. 4, Etawa, the learned magistrate is directed to pass fresh order on the protest petition filed by the complainant against final report, in case crime No. 254 of 2008 of P.S. Bakewar, District Etawah, treating the same as complaint and following the procedure laid down under section 200 and 202 Cr.P.C.