Kishore Verma vs Jitendra and State of M.P.

S.R. Waghmare, J.—This petition is filed by accused Kishore u/s 482 of the Cr.P.C. being aggrieved by the proceedings taken by the Magistrate and directing the police, M.I.G. Indore to register a case for offence under Sections 323, 294, 506, 392/34 of the I.P.C.

Counsel for the petitioner has vehemently urged that the petitioner has filed this petition for quashment of the Criminal Case No. 3422/2008 pending before the JMFC, Indore. Counsel has further urged that the learned Judge of the Lower Court had erred in registering the case against the petitioner on the complaint filed by the complainant Jitendra s/o Narayandas. The complaint, according to the Counsel prima-facie, was made on false ground and was malicious and vexatious. More importantly, Counsel has stated that the final report was submitted by the police regarding closure of the case then the learned Judge of the lower Court ought not to have taken the cognizance of the offence and registered the same. Counsel has further stated that the police had submitted the closure report to the Magistrate on 24/1/2009 and the lower Court had considered the same and despite which, the process was issued for continuing the case u/s 200 of the Cr.P.C.

Counsel for the petitioner has also stated that the learned Judge of the Lower Court had erred at this juncture and relying on Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. AIR 2004 SC 4753, Counsel has stated that the Apex Court had laid down guide lines as to what a Magistrate must take recourse to when a report is placed by the police before it u/s 173(2)(i). It held thus:

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 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 proceedings, 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 has again 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 that 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 of 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 Pvt. Ltd. Vs. State of Karnataka and Another, . The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh''s case (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard.

Thus under such circumstances, Counsel has stated that the Court ought to have taken a view that it was satisfied and closed the matter instead the proceedings u/s 200 by continuing the proceedings. Counsel urged that the learned Judge of the lower Court has not applied his mind to final closure report of the police at all. If the Court had formed an opinion then reasons ought to have been granted. Counsel stressed the fact from the impugned order it was evident that the learned Judge had not considered the closure report at all. He also urged that the Court ought to have recorded its disagreement with the report if it was dissatisfied with the same before ordering issuance of process u/s 200 of the Cr.P.C. On these grounds, Counsel has prayed that the case pending before the Court below be quashed.

Counsel for the respondent No. 1 Shri Ajay Jain, on the other hand, has vehemently denied the fact that the final report was not considered at all by the learned Judge of the lower Court. He urged that it was not a case as is being projected by the Counsel for the petitioner that the final report of the police has not been taken into consideration at all by the lower Court or that the Judge has not applied his mind to the final report before issuing the process u/s 200 of the Cr.P.C.

Counsel for the respondent drew attention to this Court to the proceedings dated 30/1/2009 of the lower Court whereby the learned Judge has stated that the Court was not satisfied with the final report of the police and registered a case for offence under Sections 323, 294, 506, 392/34 of the IPC and issued process u/s 200 of the Cr.P.C. Then under such circumstance, the action taken by the Magistrate cannot be faulted with. Counsel has further stated it is trite law that the opinion of the Magistrate regarding the final report of the police is not mandatorily binding on the Magistrate, he cannot be compelled to close the case on the receipt of the closure report of the Investigating Officer or the police against the accused. If the Magistrate is not satisfied regarding the materials unearthed by the police then he can order a further investigation himself or if there is sufficient material for him to take cognizance of the offence, he can take cognizance of the offence u/s 190(1)(b) and issue process straightway to the accused. Counsel has relied on AIR 2004 SC 4753 the same case relied by the Counsel for the petitioner and more recent case Fakhruddin Ahmad Vs. State of Uttaranchal and Another, by the Apex Court in the matter of Fakhruddin Ahmad v. State of Uttaranchal and Anr. Counsel has prayed for dismissal of the petition.

On considering the above submissions, I find the singular question that arises before me for adjudication in this case u/s 482 of the Cr.P.C. is whether the Judicial Magistrate Class I, Indore had erred in taking cognizance of the offence when allegedly there is no material available on record to support the said complaint. I find from the proceedings of the lower Court contrary to the submissions of the Counsel for the petitioner that it is not a case that the learned Judge of the lower Court had not applied his mind in the final report of the police. The provisions of law under the Criminal Procedure Code are also quite clear on the point. In the exercise of his discretion the Magistrate is at liberty to take cognizance of the offence and follow the procedure laid down under Sections 200 and 202 of the Cr.P.C. He can also order further investigation to be made by the police u/s 156(3) of the Cr.P.C., he is not bound by the final report of the police as is being vehemently urged by the Counsel for the petitioner.

It is also not a case where the learned Judge of the lower Court has not applied his mind at all to the final report of the police as is alleged by the Counsel for the petitioner. The proceedings dated 30.1.2009 are a clear indication to the contrary. The Magistrate was well in his jurisdiction either to accept the report of the police as it is or to issue further process as indicated in the case of Gangadhar (supra) and when he found a prima-facie case made out against the petitioner, he has applied his mind to the allegations of the complainant and thus there is no need to interfere with discretion of the Magistrate as already observed above. It is not necessary to this Court to go into the facts at this stage.

It is manifest from the proceedings dated 30.1.2009 that the learned Judge of the lower Court had the opportunity to apply his mind to the final report by the police and the learned Judge found on the basis of the material before him that there was a prima-facie case made out against the present petitioner for offence under Sections 323, 294, 506, 392/34 of the IPC and issued process u/s 200 of the Cr.P.C. Then under such circumstance, the action taken by the Magistrate cannot be faulted with. Then in this light, I find that it would not be proper for me to express any opinion on the merits of the case at this stage. So also keeping in mind the caution directed to be exercised by the Apex Court in such matters so that a legitimate prosecution is not stifled, I find that the order of the lower Court directing issuance of process by registering the offence is impeccable and does not call for any interference. Consequently, the application for stay is also dismissed.

The application u/s 482 of the Cr.P.C. is also devoid of merit and is dismissed as such.