Mohd. Karim and Others vs State of Uttarakhand and Another

Dharam Veer, J.—This is an application moved u/s 482 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) for quashing the summoning order dated 21.3.2006 as well as to quash the entire proceedings in Criminal Case No. 260 of 2005 (Old No. M-5/2004) State v. Abdul Karim and Ors., u/s 420/467/468/120-B IPC pending before Special Judicial Magistrate II, Dehradun.

Heard learned Counsel for the parties and perused the entire material on record.

In brief, the facts of the case are that Respondent No. 2 lodged an FIR on 17.6.2003 at PS Vikasnagar, Distt. Dehradun against the petitioners u/s 420/467/468/120-B/471 IPC, on the basis of which a case crime No. 72/2003 against the petitioners was registered. Thereafter, the matter was investigated by I.O. and after completing the investigation, he filed the Final Report in favour of the petitioners. Against the said order, the complainant moved a protest petition. Thereafter, vide order dated 6.6.2005, the court below directed the I.O. to further investigate the matter and submit a report. The I.O. thereafter again submitted the final report after investigation. Thereafter, vide order dated 21.3.2006, learned Special Judicial Magistrate II, Dehradun, quashed the said final report and directed to register the case and accordingly, summoned the petitioners to face trial u/s 420/467/468/120-B IPC. Hence this petition.

Learned Counsel for the applicants submitted that they have falsely been implicated by the respondent No. 2 in this case. It was further submitted that the learned Magistrate has passed order in a technical manner and has not applied his mind while passing the impugned order and the said order is not as per law. On the contrary, learned Counsel appearing for the respondent No. 2, while completely supporting the order passed the trial court, argued that before the trial court, the final report was submitted twice, however the learned Magistrate after examining the veracity of the matter as well as the protest application of the complainant and other facts of the case, rightly proceeded to quash the final report and to summon the petitioners to face trial. He further submitted that the facts in question involved absolutely disputed questions of fact which cannot be decided by this Court with half baked evidence.

I find force in the argument advanced on behalf of learned Counsel for the respondent No. 2 that the learned Magistrate has rightly passed the impugned summoning order after examining the entire facts and circumstances of the case. The learned Magistrate has rejected the final report submitted by the I.O. twice and rightly summoned the petitioners as per the settled law as well as in the light of a judgment of Hon''ble Apex Court in the case of Minu Kumar and Anr. v. State of Bihar and Ors. reported in (2006) 2 SCC (Cri) 310, wherein it has been held in para 11 as under:

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 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 proceeding, 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 again has 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 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. (See India Carat (P) Ltd. v. State of Karnataka)

In view of the above quoted judgment, it is clear that the three courses are open before the Magistrate (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). In the present case, the learned Magistrate by adopting second course, proceeded to summon the applicants thereby directing for registration of the case. Hence, in view of judgment of Hon''ble Apex Court in case of Minu Kumar (Supra), the order passed by the learned Judicial Magistrate appears to be perfectly justified and as per law.

For the reasons recorded above, there is no force in the application. The application C482 is devoid of merits and is hereby dismissed in-limine. Interim order dated 1.7.2006 is vacated.