Ram Prakash vs State of U.P. and Another

Ravindra Singh, J.—This application has been filed with a prayer to quash the order dated 15.7.2008 passed by learned Additional Civil Judge, (Junior Division)/Judicial Magistrate, Court No. 3, Bulandshahr in F. R. No. 153 of 2008 (Criminal Case No. 1586 of 2008) arising out of police report submitted in Case Crime No. C-87/2008, P. S. Ahmadgarh, District Bulandshahr whereby the learned Magistrate concerned has rejected the final report, accepted the protest petition and has taken the cognizance and has summoned the applicant to face the trial for the offences punishable under Sections 376, 511, 504 and 506, I.P.C.

The facts in brief of this case are that an application u/s 156(3) of Cr. P.C., has been filed by O.P. No. 2 Smt. Ram Beti, the same was allowed and the F.I.R. of the Case Crime No. C-87 of 2008 under Sections 376, 511, 323, 504 and 506, I.P.C. has been registered at police station Ahmadgarh on 6.4.2008 at 12.30 p.m. The allegation against the applicant is that he had made an attempt to commit the rape with O.P. No. 2, he hurdled the abuse and extended the threat of her life. The matter was investigated by the I.O. who submitted final report dated 13.4.2008 in the Court of learned Magistrate concerned, the same was protested by the O.P. No. 2 alongwith her affidavit. The affidavit of witness Pappu was also filed in the Court of learned Magistrate concerned in support of the prosecution version, thereafter, the learned Magistrate concerned rejected the final report and has taken the cognizance in exercise of the powers conferred u/s 190(1)(b), Cr. P.C. and has summoned the applicant to face the trial for the offences punishable under Sections 376, 511, 504 and 506, I.P.C. vide order dated 15.7.2008.

Being aggrieved from the order dated 15.7.2008, the present application has been filed by the applicant with a prayer for invoking the inherent powers conferred u/s 482, Cr. P.C., and to quash the impugned order dated 15.7.2008.

Heard Sri Rajeev Lochan Shukla, learned Counsel for the applicant, learned A.G.A., for the State of U.P.

It is contended by learned Counsel for the applicant that the F.I.R. of this case has been lodged at very belated stage, the allegations made therein are false and frivolous which have been made for the purpose of harassment due to ulterior motive. During investigation, statement of O.P. No. 2 was recorded on 8.4.2008 and on the same day, the statement of her husband Pappu was also recorded u/s 161, Cr. P.C., after completing the investigation, the I.O. came to the conclusion that the applicant has not committed the alleged offence and there was no credible evidence in support of the allegation and the I.O. had recommended for initiating the proceedings u/s 182, I.P.C. against the O.P. No. 2 also vide police report dated 13.4.2008, thereafter, the O.P. No. 2 filed a protest application alongwith her affidavit and the affidavit of witness Pappu in support of the prosecution, the learned Magistrate concerned has considered the police report as well as the affidavits of O.P. No. 2 and her husband Pappu for the purpose of taking the cognizance, which is illegal because it has been clearly mentioned by the learned Magistrate concerned in the impugned order dated 15.7.2008 that the cognizance has been taken in exercise of powers conferred u/s 191(1)(b), Cr. P.C., but in this provision, the cognizance may be taken only on the basis of the police report whereas in the present case, the affidavits of first informant and witness Pappu have also been considered, it is extraneous material, the same may not be considered in taking the cognizance in exercise of powers conferred u/s 190(1)(b), Cr. P.C. The learned Magistrate has adopted a mixed procedure for taking the cognizance which is illegal. The learned Magistrate is empowered to take the cognizance only on the basis of police report or if not satisfied, it may be taken by treating the protest application as a complaint and thereafter recording the statement under Sections 200 and 202, Cr. P.C., but in the present case, the Magistrate concerned has not adopted the procedure prescribed by law for taking the cognizance. It is further contended that allegations made against the applicants during investigation are not substantiated by any cogent material. The allegation has been made only for the purpose of harassment. It is further contended that a categorical allegation has been made in the protest petition that the statements of the first informant and her husband have not been correctly recorded by the police. In such circumstance, relying upon, the statement recorded u/s 161, Cr. P.C., for the purpose of the trial is not proper and trial will be made on the basis of the statements which have not been accepted by the witnesses themselves. The learned Magistrate concerned has committed a manifest error in passing the impugned order, the same is illegal and it may be set aside.

In reply to the above contentions, it is submitted by learned A.G.A., that in the present case, final report has been submitted by the I.O. of which the notice was given to the O.P. No. 2 who filed protest application against the F.R. alongwith her affidavit and the affidavit of her husband Pappu. The learned Magistrate concerned has narrated all the facts in the impugned order dated 15.7.2008 because there is requirement of mentioning all the facts in a judicial order but learned Magistrate concerned has not considered the affidavit of O.P. No. 2 and her husband Pappu for the purpose of taking the cognizance. The learned Magistrate concerned has considered only police report, after perusing the same learned Magistrate has come to the conclusion that O.P. No. 2 Ram Beti and witness Pappu have fully supported the prosecution version in their statements recorded u/s 161, Cr. P.C., which prima facie, disclose the commission of the offence, therefore, the learned Magistrate has categorically mentioned in the impugned order dated 15.7.2008 that the cognizance has been taken in exercise of the powers conferred u/s 190(1)(b), Cr. P.C. It is further submitted by learned A.G.A., that in principle the copy of the police report is not supplied to the first informant, that''s why the first informant does not know about the statements recorded by the I.O. If any allegation is made in the protest petition against I.O., it is made only on the basis of presumptions etc. If such affidavit is filed, it does not mean that statement recorded by the I.O. is not admitted by the first informant. On the basis of the material collected by the I.O. prima facie offence under Sections 376, 511, 504 and 506, I.P.C. is made out. There is no illegality in the impugned order dated 15.7.2008, the present application is devoid of merit, the same may be dismissed.

After considering the submissions made by learned Counsel for the applicant, learned A.G.A., for the State of U.P. and from perusal of the record, it appears that in the present case, the F.I.R. has been lodged by O.P. No. 2, after investigation, the final report has been submitted by the I.O., the same was protested by the O.P. No. 2 by way of filing the protest application alongwith her affidavit and affidavit of her husband Pappu, in paragraph 5 of the protest application it has been mentioned that the I.O. has changed the statement of O.P. No. 2 and her husband in connivance with the accused. The learned Magistrate concerned has narrated the facts in the impugned order dated 15.7.2008 in which reference of filing the protest application alongwith affidavit of O.P. No. 2 and witness Pappu, has been made but the learned Magistrate concerned has considered the police report only for the purpose of taking the cognizance. The learned Magistrate has not considered the affidavit of O.P. No. 2 and her husband Pappu for the purpose of taking the cognizance. It has been clearly mentioned in the impugned order that the statement of O.P. No. 2 Smt. Ram Beti and witness Pappu recorded during investigation have supported the prosecution version and on the basis of the material collected by the I.O., prima facie offence under Sections 376, 511, 504, 506, I.P.C. is made out. The learned Magistrate concerned has clearly mentioned in the impugned order dated 15.7.2008 that cognizance has been taken in exercise of the powers conferred u/s 190(1)(b), Cr. P.C., the learned Magistrate concerned has not considered the affidavits as extraneous material for the purpose of taking the cognizance.

So far as the next contention that the learned Magistrate concerned has taken the cognizance on the basis of the statement of O.P. No. 2 and her husband Pappu recorded u/s 161, Cr. P.C., for which it has been stated by O.P. No. 2 in her affidavit that the same have not been properly recorded or the same has been changed, on such statement, the prosecution is not proper. This contention is also having no substance because the copy of the police report is not supplied to the first informant. The first informant is having the grievance against the I.O. for not submitting the charge-sheet , if any, allegation is made in the affidavit, it is only on the basis of speculation presumption, perception etc., but it is the duty of the learned Magistrate concerned to peruse the police report and material collected by the I.O. if the learned Magistrate comes to the conclusion that the prosecution story is supported by the witnesses on which the prima facie offence is made out and there is sufficient material to proceed further against any person, the learned Magistrate concerned may take the cognizance only on the basis of the police report as happened in the present case if the learned Magistrate is guided by affidavit, it shall be presumed that he has considered the extraneous material also. In the present case, the learned Magistrate has considered only police report, he has not considered any affidavit, in such circumstance the affidavits filed by the first informant and the witness Pappu were having no relevance Contrary to it in case, the learned Magistrate concerned comes to the conclusion that the proper investigation has not been done by the I.O. or the statement has been changed by the I.O. which are not supporting the prosecution version, or there is no credible material collected by the I.O. in such circumstances, the learned Magistrate concerned rejects the final report and after considering the protest application and affidavit filed by the first informant or witnesses adopt the procedure of complaint case and after recording the statement under Sections 200 and 202, Cr. P.C., may take the cognizance against any person, but such circumstance is not in the present case. The learned Magistrate has adopted a proper procedure by taking the cognizance in exercise of powers conferred u/s 190(1)(b), Cr. P.C. There is no procedural mistake, the statements of first informant and her husband Pappu prima facie, disclose the commission of the offence under Sections 376, 511, 504 and 506, I.P.C., the impugned order is not suffering from any illegality or irregularity, therefore, the prayer for quashing the same is refused.

However, in case the applicant has not appeared before the Court concerned, it is directed that he shall appear before the Court concerned within 30 days from today. If he applies for bail, the same shall be heard and disposed of expeditiously, if possible, on the same day by the courts below.

With this direction, this application is disposed of.