Ritesh Saxena @ Reetu and others vs State of U.P.and another

Ravindra Singh, J.—This Application has been filed by the applicants namely, Ritesh Saxena alias Reetu, Anirudha Gupta alias Annu Gupta, Sanjay Gupta alias Dabbu and Amit Gupta alias Pintoo Gupta with a prayer to quash the order dated 21.3.2009 passed by learned Chief Judicial Magistrate, Farrukhabad in criminal case No. 5732 of 2007 under sections 302 and 506 I.P.C. and section 3(2)(v) of SC/ST Act whereby the learned Chief Judicial Magistrate concerned has taken the cognizance and summoned the applicants by way of issuing NonBailable Warrants.

The facts, in brief, of this case are that the FIR of this case has been lodged by O.P. 2 Suresh Diwakar at police station Kotwali, District Farrukhabad on 7.2.2007 at 11.30 p.m. in respect of the incident which had occurred on 7.2.2007 in case crime No. 108 of 2007 under sections 302 and 506 I.P.C. and section 3(2)(v) of the SC/ST. Act, the FIR was lodged against the applicants alleging therein that the applicants have committed the murder of the deceased Sanjay Diwakar who was a practising advocate of the Income Tax. It is alleged that the deceased was caught hold by the applicant Reetu, Annu and Sanjay, thereafter, the applicant Pintu Gupta caused gun shot injury on the neck of the deceased, all the accused applicants were armed with fire arms, the alleged incident was witnessed by the brothers of the deceased namely, Sonu and Monu, after investigation, the I.O. submitted the chargesheet only against Ranjeet Kumar Gupta under section 304A I.P.C., the chargesheet was not submitted against the applicants. On the basis of the chargesheet forwarded by the officerincharge of the police station concerned, the learned Chief Judicial Magistrate, Farrukhabad has taken the cognizance and summoned the accused Ranjeet Kumar Gupta on 24.12.2007, thereafter an application dated 21.2.2009 has been filed by O.P. No. 2 in the Court of learned Chief Judicial Magistrate, Farrukhabad for summoning the applicants for the offences punishable under sections 302 and 506 I.P.C. and section 3(2)(v) of SC/ST. Act, the chargesheeted accused Ranjeet Kumar Gupta also moved an application in the Court of Chief Judicial Magistrate, Farrukhabad with a prayer that he has been falsely implicated in the present case whereas the real accused persons were not named in the FIR who have not been chargesheeted due to their influence, therefore, he may be discharged under section 304A I.P.C., thereafter the learned Chief Judicial Magistrate, Farrukhabad summoned the applicants and coaccused Ranjeet Kumar Gupta for the offences punishable under sections 302 and 506 I.P.C. and section 3(2)(v) of SC/ST, Act vide order dated 21.3.2009. Being aggrieved from the order dated 21.3.2009, the present application has been filed by the applicants with a prayer to quash the same.

Heard Sri Rajiv Sharma, learned Counsel for the applicants, the learned A.G.A. for the State of U.P., Sri R.B. Shukla and Sri Deepak Dwivedi appearing on behalf of O.P. No. 2.

It is contended by learned Counsel for the applicants that in the present case, the chargesheet, has not been submitted against the applicants, it has been submitted only against Ranjeet Kumar Gupta under section 304A I.P.C., on which the learned Chief Judicial Magistrate, Farrukhabad has taken the cognizance on 24.12.2007 after considering the police report, but it is surprising that the learned Chief Judicial Magistrate has taken the cognizance and summoned the applicants and coaccused Ranjeet Kumar Gupta for the offences punishable under sections 302 and 506 I.P.C. and section 3(2)(v) of SC/ST, Act, the summoning of the applicants at this stage vide order dated 21, 3.2009 is illegal because on the basis of the police report submitted by the I.O. the learned Magistrate concerned has taken the cognizance of the offence and had summoned coaccused Ranjeet Kumar Gupta, it shows that the learned Chief Judicial Magistrate concerned was satisfied on the police report for taking the cognizance for the offence under section 304A I.P.C. only against the coaccused Ranjeet Kumar Gupta but by subsequent order dated 21.3.2009, the learned Magistrate concerned has again taken the cognizance for the offences under sections 302 and 506 I.P.C. and section 3(2) (v) of SC/ST, Act against the applicants as well as coaccused Ranjeet Kumar Gupta, the order dated 21.3.2009 amounts to review of his earlier order dated 24.12.2007 which is not permissible in law. The Trial Court was competent to exercise the powers under section 319 Cr.P.C. on the basis of the evidence if comes forward before the Trial Court. During the investigation, the version of the FIR was totally disbelieved and I.O. has come to the conclusion that alleged occurrence has not taken place in the manner as mentioned in the FIR but it has occurred in some other manner and the deceased has sustained injury accidentally. The shot was discharged by the coaccused Ranjeet Kumar Gupta, the applicants are innocent, they have not committed any offence but they have been falsely implicated in the present case and they have been illegally summoned to face the trial.

In reply to the above contention, it is submitted by the learned A.G.A. and learned Counsel appearing on behalf of Opposite Party No. 2 that O.P. No. 2, being the first informant of this case, was having right to challenge the chargesheet in which the applicants were not chargesheeted and the chargesheet was illegally submitted under section 304A I.P.C. only against Ranjeet Kumar Gupta whereas during investigation, the I.O. has collected the ample evidence disclosing the participation of the applicants in the commission of the offence punishable under sections 302 and 506 I.P.C. and section 3(2)(V) of SC/ST Act The order dated 21.3.2009 does not amount to review of the order dated 24.12.2007 by which the learned Magistrate concerned has taken cognizance under section 304A I.P.C. on the basis of chargesheet submitted against the coaccused Ranjeet Kumar Gupta, the learned Magistrate concerned is empowered to consider the material collected by the I.O. and to take the cognizance for the offence which is made out on the basis of the allegation made against accused persons and the learned Magistrate concerned was legally empowered to summon the applicants to face the trial because there was sufficient material collected by the I.O. for their prosecution. The learned Magistrate concerned has not committed any error in passing the impugned order dated 21.3.2009, the present application is devoid of merit and the same is liable to be dismissed.

Considering the submissions made by learned Counsel for the applicants, learned A.G.A. for the State of U.P. learned Counsel appearing on behalf of O.P. No. 2 and from the perusal of the record, it appears that in the present case the FIR has been lodged by O.P. 2 against the applicants in case crime No. 108 of 2007 under sections 302 and 506 I.P.C. and section 3(2)(V) of SC/ST Act at police station Kotwali, District Farrukhabad on 7.2.2007, the specific allegation has been made against the applicants in the FIR that the deceased was caught hold by the applicants Annu, Reetu and Sanjay, thereafter gun shot injury was caused on his person by the applicant Pintu Gupta, the alleged incident has occurred in the presence of Sonu and Monu, the real brothers of the deceased but the I.O. after collecting the evidence has not submitted chargesheet against the applicants, the chargesheet has been submitted against Ranjeet Kumar Gupta who was not named in the FIR, it has been submitted for the offence punishable under section 304A I.P.C., the I.O. has come to the conclusion that in a function, negligently a shot was discharged by Ranjeet Kumar Gupta which hit the deceased, the chargesheet has been submitted by the I.O. with a new version whereas alleged eyewitnesses have supported the version of the FIR, after submission of the chargesheet, the learned Chief Judicial Magistrate has taken the cognizance of the offence punishable under section 304A I.P.C against Ranjeet Kumar Gupta on 24.12.2007, thereafter, the first informant has filed an application dated 21.3.2009 against the chargesheet submitted by the I.O. with a prayer that the accused persons may be summoned for the offences punishable under sections 302 and 506 I.P.C. and section 3(2)(v) of the SC/ST Act and to proceed further against coaccused Ranjeet Kumar Gupta, according to the provisions of law, thereafter an application No. 56B has also been filed by Ranjeet Kumar Gupta claiming his discharge for the offence punishable under section 304A I.P.C., thereafter, the CJM Farrukhabad perused the police report and came to the conclusion that the offence under sections 302 and 506 I.P.C. and section 3(2)(v) of SC/ST Act prima facie is made out against the applicants and coaccused Ranjeet Kumar Gupta and the applicants have also been summoned to face the trial vide order dated 21.3.2009. The impugned order dated 21.3.2009 cannot be said to be review of the order dated 24.12.2007 because the learned Magistrate concerned is legally empowered to summon the persons who have not been chargesheeted, on the basis of the material collected by the I.O. disclosing the commission of the offence and the participation of such person in spite of the impugned order, passed by the learned Magistrate concerned on the basis of the police report in which the cognizance was taken and that person was not summoned as accused. The learned Magistrate concerned is empowered to take the cognizance in exercise of power conferred under section 190 (1)(b) of the Cr.P.C. against the persons who have not been chargesheeted. It cannot be said that the learned Magistrate concerned cannot summon the person who has not been summoned earlier at the time of taking the cognizance, once the cognizance has been taken by the learned Magistrate concerned, he takes the cognizance of an offence and not the offenders; once the cognizance has been taken of an offence, the learned Magistrate concerned is duty bound to find out the real offenders, the summoning of the additional accused is part of the proceedings initiated by his taking cognizance of an offence. This view has been taken by the Apex Court in the case of M/s. SWIL Ltd. and others v. State of Delhi and another, 2001 (43) ACC 591 para 5 of the above judgment is relevant which reads as under:

"In our view, from the facts stated above it is clear that at the stage of taking cognizance of the offence, provisions of section 190 Cr.P.C. would be applicable. Section 190 inter alia provides that the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence. As per this provision, Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under section 204 Cr.P.C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the chargesheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with chargesheet. Further, upon receipt of police report under section 173(2) Cr.P.C., the Magistrate is entitled to take cognizance of an offence under section 190(1)(b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At this stage, there is no question of application of section 319 Cr.P.C. Similar contention was negatived by this Court in Raghubans Dubey v. State of Bihar, 1968 (5) ACC 69 (SC) by holding thus:

"In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence."

The learned Magistrate concerned can issue process to summon other person against whom there is some material on record even if the process is already issued against same accused. It has been held by the Apex Court in the above mentioned case in its para 6 that there is no question of referring to the provisions of section 319 Cr.P.C. That provision would come into operation in the course of any inquiry into or trial of an offence.

The same view has been taken by this Court also in the case of Pramod Kumar Bhargava v. State of U.P. and others 2008 (62) ACC 806.

The same view has been taken by the Division Bench of this Court in Prakash v. State of U.P. and others 2008 (63) ACC 254.

From the perusal of the impugned order dated 21.3.2009, it appears that the learned Magistrate concerned has not committed any error in summoning the applicants and coaccused Ranjeet Kumar Gupta for the offences punishable under sections 302 and 506 I.P.C. and section 3(2)(v) of SC/ST Act. The impugned order dated 21.3.2009 is not suffering from any illegality or irregularity, therefore, the prayer for quashing the same is refused.

However, it is directed that in case the applicants appear before the Court concerned within 30 days from today and apply for bail the same shall be heard and disposed of expeditiously in accordance with law.

With the above direction, this application is disposed of finally.