Manoj Kumar Singh and Others vs State of Uttar Pradesh and Ravindra Nath

Saroj Bala, J.—This criminal revision is directed against the order dated 14.8.2001 passed by the Judicial Magistrate II, Sant Raviclas Nagar Bhadohi at Gyanpur whereby summoning the revisionists on the basis of protest petition filed against the final report.

The facts giving rise to the revision are these:

An application u/s 156(3) Cr.P.C. was moved by the opposite party No. 2 for registration and investigation with the allegations that on 27.2.2001 at 3.30 P.M. the revisionists surrounded the opposite party No. 2 on the way and subjected him to assault by wielding of hockey, lathi and sticks. The revisionist Vijay. Bahadur Singh opened fire from gun but the opposite party No. 2 had a narrow escape. The revisionist Manoj Kumar Singh mounted assault on the head of the opposite party No. 2 by giving hockey blow. On hearing the outcries, the witness Sahab Singh came forward to save the opposite party but he was also subjected to assault. The application u/s 156(3) was rejected by the Judicial Magistrate. The Opposite Party preferred a revision before the Sessions Judge which was allowed and the matter was remanded for decision afresh. After re-considering the matter the Judicial Magistrate directed registration and investigation The First Information Report was registered as case Crime No. 19-A of 2001 under Sections 147, 148, 149, 307, 394 IPC, Police Station Durgaganj, District Sant Ravidas Nagar, Bhadohi. After investigation final report was submitted on 3.8.2001. Notice was issued to the opposite party No. 2. The Opposite party No. 2 filed protest petition against the final report supported with affidavits alleging that the Investigating Officer had not recorded the statements of witnesses Sukhram Harijan and others and interrogated such persons who were not named as witness in the FIR. The cognizance was taken by the Magistrate u/s 190(1)(b) of the Code of Criminal Procedure (hereinafter referred to as the Code).

The impugned order has been challenged on the ground that the Magistrate having taken into consideration external material in addition to the material collected by the Investigating Officer while taking cognizance u/s 190(1)(b) of the Code, the order is illegal. The Magistrate having taken into consideration the affidavits filed by the complainant alongwith protest petition, he should have followed the procedure laid down for complaint case.

Heard Sri P.N. Tripathi, learned Counsel for the revisionist, Sri Akhilesh Singh, learned Counsel for the Opposite Party No. 2, learned A.G.A. and have perused the record.

The learned Counsel for the revisionists placing reliance on the decision in Harikesh and Ors. v. State of U.P. and Ors. (XXXXIII)2001 ACC 720 argued that the cognizance having been taken on the basis of protest petition and accompanying affidavits, the procedure prescribed u/s 190(1)(a) should have been adopted. The Magistrate while taking cognizance u/s 190(1)(b) of the Code had no jurisdiction to consider the extraneous material or evidence in addition to the material collected by the Investigating Officer.

The learned Counsel for the opposite party No. 2 and the learned A.G.A. submitted that the Magistrate has acted upon the material available on the case diary.

The impugned order indicates that the Magistrate had considered the final report, protest petition of complainant and affidavits before proceeding to act u/s 190(1)(b) of the Code. The Apex Court in Abhinandan Jha and Others Vs. Dinesh Mishra, has held that on receiving final report it was not within the powers of the Magistrate to direct the police to submit a charge-sheet but it is open to him to agree or disagree with the police report. If he agrees that there is no case made out for issuing process, he may accept the report and drop the proceedings. He may come to the conclusion that further investigation is necessary in that event he may pass an order to that effect. 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 expressed in the police report. It was observed therein that the Magistrate in that event could take cognizance u/s 190(1)(c) of the Code. The reference to Section 190(1)(c) was a mistake for Section 190(1)(b) as pointed out in the later decision in H.S. Bains v. State (XVIII)1981 ACC 146 (SC).

In H.S. Bains ( Supra ), it was held by the Apex Court 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) Cr.P.C. The Magistrate may prefer to ignore the conclusions 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.

In India Carat Pvt. v. State of Karnataka (XXVI)1989 ACC 280 (SC) it was held as under:

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.

In Gangadhar Janardan Mhatre Vs. State of Maharashtra and Others, the Apex Court held as under:

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 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 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.

In Pakhando and Ors. v. State of U.P. and Anr. (XXXXIII)2001 ACC 1096, a Division Bench of this Court held that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them:

(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 straightaway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearned 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 decide whether complaint should be dismissed or process should be issued.

Where the Magistrate decides to take cognizance u/s 190(1)(b) of the Code on the basis of final report he can act upon the statements of the witnesses recorded by the Investigating Officer in the case diary and material collected by him during investigation. It is not permissible to consider any material other than that collected by the Investigation Officer. In the instant case cognizance was taken on the basis of protest petition and accompanying affidavits. In such a situation the Magistrate should have adopted the procedure of complaint case as contemplated under Chapter XV of the Code and recorded the statements of the complainant and witnesses under Sections 200 and 202 of the Code. The Magistrate having taken cognizance u/s 190(1)(b) of the Code after taking into consideration the facts stated in the protest petition and accompanying affidavits, the impugned order le against the settled legal position.

In view of the above discussion, the revision succeeds. The impugned order dated 14.8.2001 is set aside. The case is remanded to the Judicial Magistrate concern for decision afresh in accordance with law.