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

Shri Kant Tripathi, J.—Heard Mr. Amit Mishra for the applicants and Sri P.S. Pundir for the Respondent No. 2 and the learned A.G.A. for the Respondent No. 1 and also perused the record.

This is a petition u/s 482 of the Code of Criminal Procedure (in short "the Code") for quashing the order dated 5.5.2008 passed by the II-Judicial Magistrate, Court No. 15, Saharanpur in Criminal Case No. 347 of 2008, Kuldeep v. Mahendra and Ors. arising out of Case Crime No. 46 of 2007 under Sections 307, 324, 504 and 506, I.P.C., P.S. Rampur Maniharan, District Saharanpur.

It appears that in the aforesaid case, the Police submitted a final report against which the Respondent No. 2 filed a protest petition alongwith his own affidavit and the affidavits of the witnesses, namely ; Rajveer, Raj Singh, Ved Pal and Sandeep. The learned Magistrate perused the case diary and the statements of the complainant and the injured recorded by the Investigating Officer and also took into account the injury report of the injured and arrived at the conclusion that the final report was not justified and as such he rejected the final report and directed issue of processes against the applicants.

Mr. Amit Mishra, the learned Counsel for the applicants submitted that the impugned order passed by the learned Magistrate was unwarranted in law in view of the fact that he took into account the affidavits filed by the complainant and the witnesses. Instead he could pass the order only on the basis of the materials collected during the investigation. The impugned order, which is based on extraneous materials, is bad in law.

The aforesaid submission of the learned Counsel for the applicant does not appear to have any merit.

In regard to the police report, whether it is in the form of charge-sheet or the final report. The power of the Magistrate is well-settled. The Magistrate is not bound by the conclusion of the police. Whenever any police report is submitted, the Magistrate may agree with the report and accept the same. He may, in a given situation, disagree with the conclusion of the police and arrive at his own conclusion. In the matter of final report too, the Magistrate may disagree with the report and take cognizance of the offence, if he, after applying his mind to the facts emerging from the investigation, is of the view that there is sufficient material to summon the accused and proceed with the case. In other words, the Magistrate is competent to reject the final report and take cognizance of the offence if a prima facie case is made out against the accused from the materials collected during the investigation. In appropriate cases, the Magistrate, after disagreeing with the report, may direct for further investigation. These principles have been settled by the Apex Court in several cases and some of them are, Minu Kumari and Another Vs. The State of Bihar and Others, Popular Muthiah Vs. State represented by Inspector of Police, Abhinandan Jha and Others Vs. Dinesh Mishra, and Gangadhar Janardan Mhatre Vs. State of Maharashtra and Others,

The law in regard to the protest petition is also well-settled. If any protest petition is filed against the final report, the Magistrate may proceed to examine the matter on the basis of materials collected during the investigation and to see whether or not any case for taking cognizance of the offence is made out from the materials collected during the investigation. If a prima facie case is made out, the Magistrate may take cognizance of the offence u/s 190(1)(b) of Code of Criminal Procedure and reject the final report. But if such materials do not make out any case for taking cognizance of the offence, the Magistrate may, in that situation, treat the protest petition as complaint. If any protest petition is treated as complaint, it should be dealt with in accordance with Chapter XV of Code of Criminal Procedure.

It is no doubt true that the learned Magistrate has referred to the affidavits of the Respondent No. 2 and other witnesses in paragraph 3 of the order dated 5.5.2008 but he has nowhere took into account the affidavits while passing the order. The learned Magistrate appears to have perused the Police report and the materials collected during the investigation and on the basis of such materials, held that a prima facie case under Sections 307, 324, 504 and 506, I.P.C. was made out for summoning the applicants. Therefore, the learned Magistrate does not appear to have taken into account any extraneous material while passing the impugned order.

The petition has, therefore, no merit and is accordingly dismissed.