Mohd. Tariq Anwar vs State of U.P. and Another

Ravindra Singh, J.—Heard Sri Rajeev Gupta, Sri Rajrshi Gupta and Rakesh Dubey learned Counsel for the applicant and learned A.G.A. for the State of U. P.

This application has been filed with a prayer to quash the proceeding of Case No. 2202 of 2008 under Sections 326, 504, 506 and 392, I.P.C. pending in the Court of learned Metropolitan Magistrate-IV, Kanpur Nagar arising out of Case Crime No. 193 of 2007, P. S. Swaroop Nagar, District Kanpur Nagar.

The facts in brief of this case are that the F.I.R. has been lodged against the applicant on 17.7.2007 at 1.40 p.m. by the O.P. No. 2 Sri P. P. Singh in Case Crime No. 193 of 2007 under Sections 392, 307, 504 and 506, I.P.C., P. S. Swaroop Nagar, district Kanpur Nagar, after investigation the final report dated 25.1.2008 has been submitted by Investigating Officer in the Court of learned Metropolitan Magistrate-IV, Kanpur Nagar against which the O.P. No. 2 filed a protest application alongwith his affidavit, consequently the final report has been rejected and applicant has been summoned to face the trial vide order dated 15.4.2008.

It is contended by learned Counsel for the applicant that the first informant O.P. No. 2 has filed his affidavit in support of the protest application mentioning therein that the last 10 lines of his statement recorded u/s 161, Cr. P.C. by Investigating Officer are absolutely false because such statement has not been given by him but the learned Magistrate concerned has relied upon such statement recorded u/s 161, Cr. P.C. which has not been accepted by first informant O.P. No. 2 himself by clearly stating in his affidavit that last 10 lines of his affidavit are absolutely false and baseless. In such circumstances the reliance placed upon such statement by learned Magistrate concerned is not proper. The prosecution shall be done on such statement which has been recorded u/s 161, Cr. P.C. but the same has not been accepted by the first informant O.P. No. 2. In such a situation it would have been proper not to make reliance on such statement for the purpose of taking the cognizance and summoning the applicant, either the order of further investigation would have been passed or the protest application would have been treated as a complaint. The learned Magistrate concerned has not considered the well-settled legal position on submission of final report. The learned Magistrate concerned has not applied the judicial mind and passed the impugned order dated 15.4.2008 which is illegal and is liable to be set aside.

In reply of the above contention it is submitted by learned A.G.A. that in the present case the final report has been submitted by the Investigating Officer, the same was protested by the first informant O.P. No. 2 by way of filing the protest application supported by his affidavit. The first informant has made some allegations against the Investigating Officer for not doing the fair investigation and illegally submitting the final report. Such allegations are generally made by the first informant on the basis of some presumptions, perceptions, or apprehensions because the notice is sent to the first informant but the copy of the police report is not supplied to the first informant, in such circumstances the allegations made by first informant in protest petition and his affidavit filed in support of protest petition are required to be checked by learned Magistrate concerned from the police report. If the learned Magistrate concerned comes to the conclusion that prosecution story is supported by the witnesses and there is sufficient material to proceed further against a person, the learned Magistrate concerned may reject the final report and the accused persons may be summoned on the basis of the material collected by the Investigating Officer. If the learned Magistrate concerned comes to the conclusion that the allegations made in the protest application in respect of not doing fair/proper investigation or the statements of the witnesses have not been recorded or if recorded are not correct, the learned Magistrate concerned may reject the final report and may pass the order for further investigation or the protest petition may be treated as a complaint.

In the present case, the statement of the witnesses have been recorded by the Investigating Officer in corroboration of the prosecution version. The learned Magistrate concerned has perused the police report and rejected the final report and summoned the applicant to face the trial, after considering the police report which discloses the commission of the offence having sufficient material to proceed further the persons summoned in such a position the averments made in the affidavit should not be given importance for the purpose of taking cognizance because it is not stage of appreciation of evidence for coming to the conclusion to convict or acquit the accused therefore, the statement of O.P. No. 2 (first informant) recorded u/s 161, Cr. P.C. which corroborates prosecution story, cannot be discarded only because he stated in his affidavit that last 10 lines of statement are not correct, at this stage only police report is to be considered, no extraneous material can be considered, the affidavit of O.P. No. 2 is an extraneous material which cannot be considered for the purpose of taking cognizance. The learned Magistrate concerned has not committed any error in rejecting the final report, taking the cognizance and summoning the applicant. There is no illegality in the impugned order dated 15.4.2008, passed by learned M.M. IV, Kanpur Nagar. The present application is devoid of merits, the same may be dismissed.

Considering the submission made by learned Counsel for the applicant and learned A.G.A. and from the perusal of the record it appears that in the present case the learned Magistrate concerned has rejected the final report after considering the police report, no extraneous material has been considered by the learned Magistrate concerned in taking the cognizance and summoning the applicant to face the trial by clearly observing the statement of O.P. No. 2 (first informant) and the alleged eye-witness Manoj Bajpayee have fully supported the prosecution the prosecution story in their statements recorded by Investigating Officer, u/s 161, Cr. P.C. is supported by medical evidence also and on the basis of material collected by Investigating Officer prima facie offence under Sections 326, 504, 506 and 392, I.P.C. is made out. The learned Magistrate concerned has adopted a proper procedure in passing the impugned order. The learned Magistrate concerned has not committed any error in adopting the procedure.

So far as the issue raised by learned Counsel for the applicant that no reliance can be placed on the statement of O.P. No. 2 recorded u/s 161, Cr. P.C. because he himself stated in his affidavit filed in support of the protest petition that last 10 lines of his statement recorded by the Investigating Officer u/s 161, Cr. P.C. are false which had not been stated by him before the Investigating Officer and no reliance can be placed on such statement, in such circumstances the applicant cannot be summoned. To deal with this issue it is necessary to discuss the procedure in case of submission of final report though the word final report is not having it''s place in Code of Criminal Procedure. The terms final report is used in cases where Investigating Officer submits the police report u/s 169, Cr. P.C., where Investigating Officer expresses the opinion that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate but the report of Investigating Officer on completion of an investigation is submitted u/s 173(1), Cr. P.C. which may be either of u/s 169, Cr. P.C. or Section 170, Cr. P.C. It is the settled position of law that for purpose of taking the cognizance of an offence on police report no other material (extraneous material) can be considered, if the learned Magistrate concerned comes to the conclusion that on the basis of the material collected by the Investigating Officer no offence is made out and there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, the final report be accepted. In case the learned Magistrate concerned comes to the conclusion that fair or proper investigation has not been done the statement of the witnesses have not been recorded or if recorded are not correct which has been alleged by the first informant, the order of further investigation may be passed by learned Magistrate concerned or the learned Magistrate concerned may treat the protest application as a complaint. So far as the denial of the first informant about the last 10 lines of this statement recorded u/s 161, Cr. P.C. by way of an affidavit is concerned, is having no relevance because the such affidavit is an extraneous material which cannot be considered by the learned Magistrate concerned, if the cognizance has been taken on the police report. The first informant may make such allegations on the basis of some own perception, presumptions or apprehensions. It is the duty of learned Magistrate concerned to peruse the police report and consider for passing an appropriate order on the final report. If the learned Magistrate comes to the conclusion that prosecution story is supported by the witnesses u/s 161, Cr. P.C., the contrary averments made by the first informant are having no relevance, if the allegations made by the first informant are genuine, the learned Magistrate concerned may pass the order of further investigation or may treat the protest application as a complaint. It is the stage of taking the cognizance on the basis of the material collected by the Investigating Officer, it is not a stage of appreciation of the evidence to draw the conclusion for the purpose of conviction or acquittal etc., of an accused. The credibility of the first informant O.P. No. 2 shall be tested at the stage of the trial. The impugned order dated 15.4.2008 is not suffering from any illegality or irregularity, therefore, the prayer for quashing the same is refused.

However, it is directed that applicant shall appear before the Court concerned within 60 days from today and applies for bail, the same shall be heard and disposed of on the same day by the courts below.

With this direction, this application is finally disposed of.