Kallu vs State of U.P. and Another

Shri Narayan Shukla, J.—Heard Mr. D.K. Mishra, learned Counsel for the Petitioner as well as Mr. R. P. Shukla, learned Additional Government Advocate.

The Petitioner has challenged the order dated 1.6.2006, passed in Case No. 2306 of 2006 by learned Chief Judicial Magistrate, Unnao whereby final report has been rejected and the Petitioner has been summoned for trial under Sections 380 and 506, I.P.C. as well as the order dated 24.9.2008, passed in Criminal Revision No. 161 of 2008 by learned Session Judge, Unnao whereby Petitioner''s criminal revision against the order of learned Chief Judicial Magistrate has been dismissed, merely on the ground that the learned Magistrate has committed manifest error in law in summoning the Petitioner treating the protest petition as complaint case even after receiving the final report in his favour and further, there is violation of Section 204(2) of the Code as till the date of issuance of order, no list of prosecution witnesses was filed.

In support of his contentions, learned Counsel for the Petitioner has placed reliance upon the cases of Mukesh and Ors. v. State of U. P. and Ors. 2005 (2) JIC 568: 2005 (2) ACR 2221; Smt. Chhaya William and Ors. v. State of U. P. and Anr. 2004 (1) JIC 381: 2004 (1) ACR 796; Bhagwan Singh and Ors. v. State of U. P. and Anr. 2002 (2) JIC 563: 2002 (2) ACR 1881 and Pakhandu and Ors. v. State of U. P. and Anr. 2002 (1) JIC 104: 2001 (3) ACR 2541 and submits that the order is unsustainable and is liable to be quashed.

u/s 190, Cr. P.C., learned Magistrate may take cognizance of any offence.

(a) Upon receiving a complaint of facts which constitute such offence ;

(b) Upon a police report of such facts ;

(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

Thus, from the provisions of Section 190, Cr. P.C. it is evident that apart from police report, the Magistrate can take cognizance upon two other grounds and in the present case by entertaining the protest application, the Magistrate has taken cognizance of offence in which, I do not find any illegality.

So far as the compliance of provision of Section 204(2) is concerned, it is not mandatory as the prosecutor is under obligation to furnish the list before the stage of starting the evidence of witness. Since, in this respect, the provision of Section 254, Cr. P.C. is relevant, it is reproduced as under:

Procedure when not convicted.-

(1) If the Magistrate does not convict the accused u/s 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.

The Sub-section (2) of Section 254, Cr. P.C. permits the Magistrate to issue summons to any witness directing him to attend or to produce any document or other thing, on the application of the prosecution or the accused, if he thinks fit. It permits the prosecution to furnish the list of witnesses at this stage.

Ultimately, after going through the judgment cited by the Petitioner rendered in the case of Pakhandu and Ors. v. State of U. P. and Anr. 2002 (I) JIC 104: 2001 (3) ACR 2541 . I find that the question has been answered by the Division Bench of this Court before whom the following question was referred to answer by considering the case of Tula Ram and Others Vs. Kishore Singh, in which it was held that if the police, after making an investigation, sent a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of the case u/s 190 on the basis of material collected during investigation and issue process or in the alternative he could take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he was of opinion that the case should be proceeded with.

In the light of the aforesaid decision, the conclusion arrived at by this Court is reproduced hereinunder:

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 u/s 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 u/s 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 decided whether complaint should be dismissed or process should be issued.

The record further discloses that the learned Magistrate has recorded the statement of complainant and having been satisfied prima facie on the fact that offence is made out, he has taken cognizance of the case.

Therefore, I am of the view that if the prosecution commits a mistake for not furnishing the list of witnesses before issuance of summons, that does not vitiate the proceeding of the case and it is open for the Court to accept the list even after issuance of summons.

From the fact of this case, it is obvious that the learned Magistrate has taken cognizance of the offence under Sub-clause (iv) of the findings given in Pakhandu''s case (supra). The Petitioner has also attacked the order on one other ground that it is still mentioned as a State case, accordingly, learned Magistrate cannot proceed treating the same as complaint case. However, this argument is misconceived and earlier the case was registered as a State case but now after taking cognizance of offence by the learned Magistrate u/s 190(1)(a), Cr. P.C. it is open for the learned Magistrate to proceed as a complaint case and it can be re-numbered accordingly.

Therefore, I do not find any illegality in the order. The petition is dismissed.