Laljee Tiwari and Others vs State of U.P. and Another

Vedpal, J.—This petition u/s 482 Code of Criminal Procedure has been filed by the Petitioners for quashing the proceedings of Criminal Case No. 1006 of 2007 under Sections 504 and 506 I.P.C., Police Station Kotwali Bansi, District Siddharth Nagar pending against the applicants before the learned Judicial Magistrate, Bansi, District Siddharth Nagar along with summoning order dated 4.6.2007.

Counter-affidavits and rejoinder-affidavit have already been exchanged.

It reveals from the perusal of the record that an N.C.R. No. 91/2006 u/s 504 and 506 I.P.C. was lodged at police Station Bansi by Jagjivan, opposite party No. 2 herein. Thereafter an application was moved before the Judicial Magistrate, Bansi to the effect that under the provisions of Section 156(2) Code of Criminal Procedure, the S.H.O. concerned be directed to investigate the case whereupon learned Magistrate vide order dated 20.12.2006 ordered for investigation of the case. The case was investigated upon by the police and a report was submitted by the police to this effect that offence under Sections 504 and 506 I.P.C. is not made out and a prayer was made that ''final report'' be accepted and the matter be closed. Thereafter a protest petition was filed by opposite party No. 2 alongwith his affidavit. Learned magistrate after hearing the opposite party No. 2 and going through the ''final report'' submitted by the investigating officer was of the view that the investigating officer has not properly investigated the case and in view of the protest petition and affidavit annexed therewith the final report dated 13.1.2007 was rejected as the Petitioners were summoned under the provisions of Section 190(1)(b) Code of Criminal Procedure to face the trial for the offence punishable under Sections 504 and 506 I.P.C. vide impugned order dated 4.6.2007. Feeling aggrieved with the said order, this petition has been filed.

Heard learned Counsel for the Petitioners as well as learned A.G.A. for the State (opposite party No. 1). None appeared on behalf of the complainant opposite party No. 2, who had filed his counter-affidavit stating therein that the cognizance has been taken under the provisions of Section 190(1)(b) which is just, legal and proper and there is No. misuse of the process of the Court and there is No. illegality or irregularity in the impugned order and this petition is misconceived and devoid of merit and is liable to be dismissed with costs.

It was contended by Learned Counsel for the Petitioners that where police submits final report, though it is open to the Magistrate to take cognizance u/s 190(1)(b) Code of Criminal Procedure on the basis of investigation records but in that event he cannot take any external aid of any other piece of evidence or material which does not form part of police papers. If he decides to take into account any material or evidence other than police papers prepared during investigation, he is bound to comply with the requirement of Sections 200 and 202 of the Code. It was argued that since in the present case the learned Magistrate has taken into consideration the affidavits of the complainant filed along with the protest petition, he was bound to follow procedure laid down for complaint cases. It was also contended that if the Magistrate felt that the investigating officer failed in his duty in collecting relevant material, he should have directed further investigation instead of issuing process against the applications on the basis of material brought on record in the form of affidavits.

The controversial question thus in the present case is whether the Magistrate deciding to take cognizance u/s 190(1)(b) on the receipt of final report could take aid of external material or evidence in addition to the materials or facts collected during investigation or he could act upon only on the investigation records?

In order to decide this controversial question it is necessary to go through the relevant provisions of the Code of Criminal procedure.

Chapter XIV of the Code of Criminal Procedure deals with the conditions requisite for initiation of proceedings. For the purpose of this case I am concerned with Section 190(1) alone which is reproduced below:

Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), 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.

The above are the methods of taking cognizance of offences by the Magistrate competent to try the same. The Magistrate called upon to take cognizance of the offence must apply its mind to the facts placed before it either upon a police report or upon a complaint or in some other manner the Magistrate came to know about it.

When a Magistrate receives a complaint, which may be either oral or in writing as defined under Clause (d) of Section 2 of the Code, he has two courses open before him. He may take cognizance u/s 190(1)(a) by applying his mind to the facts of the case and thereafter proceed in the manner provided in Sections 200 and 202 Code of Criminal Procedure By virtue of Section 200 he is required to examine the complainant and the witnesses present, if any. If the Magistrate finds that there is sufficient ground for proceeding, he may issue process u/s 204. But if the Magistrate does not feel satisfied, he may either dismiss the complaint u/s 203 Code of Criminal Procedure or postpone the issue of process and take recourse to Section 202 which provides that he may inquire into the case himself or may direct an investigation to be made by a police officer or such other person as he thinks fit, for the purpose of deciding whether or not there are sufficient grounds to proceed. If he finds grounds to be sufficient he may issue process or otherwise he may dismiss the complaint u/s 203 Code of Criminal Procedure after briefly recording his reasons for so doing.

The other course open to the Magistrate is that instead of taking cognizance he may send the complaint for police investigation u/s 156(3), Code of Criminal Procedure If this course is adopted, the police will have to investigate the matter as per the procedure laid down in Section 157 onwards. If upon investigation it appears to the Officer-in-charge of the police station that there is No. sufficient evidence or any reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, he may submit a report to the Magistrate for dropping the proceedings. Such a report is commonly known as "Final Report".

Section 170 Code of Criminal Procedure lays down that if, upon an investigation, it appears to the officer in-charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. The report of completion of investigation shall be forwarded to the Magistrate in the prescribed form as provided u/s 173(2) Code of Criminal Procedure

The Hon''ble Supreme Court in Abhinandan Jha and Others Vs. Dinesh Mishra, H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), Tula Ram and Others Vs. Kishore Singh, and India Carat Pvt. Ltd. Vs. State of Karnataka and Another, has held that upon receiving final report the following four courses are open to the Magistrate and he may adopt any one of them as the facts and circumstances of the case may require:

(I) He may agree 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 officer 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 Code of Criminal Procedure and thereafter decide whether complaint should be dismissed or process should be issued.

Thus the position of law is now well settled as stated above.

In Abhinandan Jha and Others Vs. Dinesh Mishra, the question arose whether a Magistrate to whom report u/s 173(2) had been submitted to the effect that No. case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the police. The Apex Court held that the Magistrate has No. jurisdiction to direct the police to submit a charge sheet but it is open to the Magistrate to agree or disagree with the police report. If he agrees with the report that there is No. case made out for issuing process to the accused, he may accept report and close the proceedings. But if he comes to the conclusion that further investigation is necessary, he may make an order to that effect u/s 156(3) and if ultimately the Magistrate is of the opinion that the facts set out in the police report constitute an offence. He can take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. However in the said decision a typing error occurred inasmuch as the reference to Section 190(1)(c) was a mistake for Section 190(1)(b) which was later on pointed out in H.S. Bains case (supra).

In the case of H.S. Bains (supra) it was held that the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses expressed in the police report submitted to the Magistrate u/s 173(2) Code of Criminal Procedure The Magistrate may prefer to ignore the conclusion of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. It would, thus, be a cognizance u/s 190(1)(b) of the Code. The Apex Court repelled the contention that if the Magistrate was not satisfied with the police report only two courses were open to him viz. either to order a further investigation of the case by the police or to take cognizance of the case himself as if upon a complaint and record the statements of the complainant and his witnesses u/s 200 of the Code and then issue process if he was satisfied that the case should be proceeded with.

In the case of Tula Ram and Others Vs. Kishore Singh, it was held that if the police, after making an investigation, send 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(1)(b) 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.

Similarly in the case of India Carat Pvt. Ltd. Vs. State of Karnataka and Another, it was held by the Apex Court in paragraph 16 of the report "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 conclusions arrived at by the investigation officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in 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. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second Respondent and order the issue of summons to him."

The observations made in the decision in M/s. India Carat Pvt. Ltd., which have been reproduced above in this judgment, leave No. room for doubt that the Magistrate is not bound with the conclusions arrived at by the investigating agency and it is open for him to apply his mind independently to the facts emerging from the investigation and take cognizance of the case if he deems fit, in exercise of his powers u/s 190(1)(b). The Magistrate in such a situation is not bound to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance u/s 190(1)(a), though alternatively it is open-to him to act u/s 200 or Section 202 also.

The position is thus clear that when Magistrate receives police report u/s 173(2), he is entitled to take cognizance of an offence 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 investigation and other material collected during investigation and form his own opinion independently without being bound by the conclusions arrived at by the investigating agency and take cognizance u/s 190(1)(b) of the Code and direct the issue of process to the accused. However the Magistrate cannot make use of any material or evidence other than the investigation records while acting u/s 190(1)(b) of the Code. If he chooses to make use of any materials other than the investigation records, he will have to follow the procedure laid down in relation to complaint cases, on the basis of original complaint or application moved u/s 156(3) Code of Criminal Procedure which otherwise tantamount to complaint or the Protest petition filed against acceptance of final report treating the same as complaint.

In the present case the learned Magistrate while taking cognizance u/s 190(1)(b) of the Code has taken into consideration the affidavits of complainant filed along with Protest Petition which was not permissible in law. He could take cognizance on the basis of the Protest Petition but in that event he was bound to follow procedure laid down for complaint cases. The distinction between two types of cognizance is apparent inasmuch as cognizance u/s 190(1)(b) is taken only on the basis of papers forwarded by police u/s 173(2) Code of Criminal Procedure but when the Magistrate makes up his mind to take into consideration other material or evidence it would be a case of taking cognizance u/s 190(1)(a) of the Code and for that matter procedure prescribed for complaint cases under Sections 200 and 202 Code of Criminal Procedure has to be followed. If the Magistrate was of the opinion that the investigating officer had failed to record statements of material witnesses, it was open for the learned Magistrate to have sent back the case to police for a further investigation.

For the above reasons, the impugned order of the learned Magistrate cannot be sustained and is liable to be set aside. Consequently the petition should be allowed.

The petition is accordingly allowed. The order of the learned Magistrate dated 4.6.2007 passed in Criminal Case No. 1006/2007 arising out of NCR No. 91/2006 under Sections 504 and 506 I.P.C. is set aside and the learned Magistrate is directed to pass appropriate orders afresh on the Protest Petition filed by the complainant against the final report submitted by police in accordance with law and in the light of observations made above in the body of this order.