Shanker Lal vs State of U.P. and Others

N.K. Mehrotra, J.—This is a revision u/s 397 of the Code of Criminal Procedure against the judgment and order dated 29.9.1988, passed by the I Vth Additional Sessions Judge, Unnao in Criminal Revision No. 7 of 1988 Vidya Ram and Ors. v. State of U.P., setting aside and quashing the order dated 6.11.1987 passed by the Munsif Magistrate (South), Unnao in Case No. 590 of 1987, State of U.P. v. Vidya Ram and Ors. summoning the accused opposite parties under Sections 147/149/302/201/404 and 120B of the Indian Penal code after rejecting the final report of the Investigating Officer filed u/s 169 of the Code of Criminal Procedure.

I have heard the learned Counsel for the revisionist and the opposite parties.

It appears that one Ram Kishan was found hanging in his own room in the morning of 5.2.1984 by his fellow department men. A report of the incident was lodged by Sri V. R. Mishra, Junior Engineer of Hydel department at the police station giving intimation of suicide. After inspecting the spot and after receipt of the post-mortem report. police registered a Case Crime No. 37 of 1984 under Sections 147/149/201/302/404 of the Indian Penal Code against accused Vidya Ram Mishra, Chandra Mool, Munni Lal, Sunder Lal and Smt. Savitri Devi. During investigation, the investigating agency was changed and the investigation was given to the C.B.C.I.D. Subsequently, a final report was submitted by the C.B.C.I.D. The revisionist who is the real brother of the deceased made a protest petition before the learned Magistrate and pointed out that the entire records of investigation, photographs, post mortem report and spot inspection report, panchayatnama, etc. prepared by the local police prior to the investigation by the C.B.C.I.D. may also be examined while considering the final report submitted by the C.B.C.I.D. The learned Magistrate, after examining the entire documents, summoned the opposite party Nos. 2 to 6 as he found a prima facie case against them. This order was assailed in criminal revision before the Sessions Judge and the learned Sessions Judge quashed the order on the ground that the learned Magistrate was not competent to examine the evidence collected by the local police, the learned Magistrate has relied on the confessional statement of accused Smt. Savitri which was later on found wrong by the C.B.C.I.D. and Smt. Savitri Devi had resiled from her earlier statement and this revisionist has no locus standi to move the protest petition because he is not complainant in this case. It has been further held that the protest petition is to be treated as complaint and the entire procedure of a complaint case has to be observed. Therefore, on a protest u/s 200 of the Code of Criminal Procedure, a list of the witnesses has to be furnished and if, the Court finds a prima facie case made out against the accused, then cognizance could have been taken but it has not been done in this case. The learned Sessions Judge also examined the evidence collected during investigation. He also examined the protest petition and held that this protest petition is not in the shape of complaint. He has also recorded a finding that except the confessional statement of Smt. Savitri Devi, which was obtained by subjecting her to electric shocks, there is nothing in the case diary for summoning the accused-persons.

After perusal of the order of the learned Magistrate on the protest petition, I find that the learned Magistrate has perused the case diary and the statements recorded by the police before the investigation was transferred to the C.B.C.I.D. The learned Magistrate is of the view that it is a case of homicide according to the post mortem report and the articles belonging to the deceased were recovered from the possession of the accused. Section 190 of the Code of Criminal Procedure is as follows:

Cognizance of offences by Magistrates.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence:

(a) upon receiving a complaint of facts which constitute such offence ;

(b) upon a police report of such facts ;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.

The aforesaid provision goes to show that the Magistrate is legally competent to take cognizance upon a police report of such facts, which constitute an offence, or upon information received from any person other than a police officer that such offence has been committed. So the order passed by the learned Magistrate on the protest petition was an order u/s 190(1)(b) and there was no jurisdictional error in the order passed by the Magistrate.

The finding of the learned Sessions Judge in revision that the revisionist had no locus standi and the complaint was not in the prescribed proforma has no force. A complaint will be made by any person who knows about the commission of an offence and not necessarily by the injured person. The complaint of facts constituting the offence need not be in writing. The word ''complaint'' has a wide meaning, since it includes even an oral allegation. It may, therefore, be assumed that no form is prescribed which the complainant must take. Where the order of the Magistrate reveals that he came to the conclusion that prima facie a case was made out on perusal of the case diary, order summoning the accused would be covered u/s 190(1)(b) and the procedure laid down u/s 190(1)(a) would not be attracted. Therefore, the finding of the learned Sessions Judge in the impugned order that the learned Magistrate must have recorded the evidence u/s 200 of the Code of Criminal Procedure is not in accordance with law. The learned Sessions Judge has also discussed the evidence but he has not seen the post-mortem report and that portion of the case diary, which was prepared by the police before the investigation was entrusted to the C.B.C.I.D. In Gajadhar Singh v. Mahesh Chandra and Ors. 1981 AWC 449, it was held that in a case of police final report, the Magistrate can differ from the police view and take cognizance straightaway u/s 190(1)(b) of the Code of Criminal Procedure. In such cases, the procedure to be followed would be the same as in case of taking cognizance on a police report.

In view of the above, the cognizance taken by the Magistrate is in accordance with law and the learned Sessions Judge in revision has acted beyond his jurisdiction in quashing the order. Thus, it would clearly be a case of procedural error causing miscarriage of justice.

Therefore, the revision is allowed. The impugned order dated 29.9.1988 passed by the I Vth Additional Sessions Judge, Unnao in Criminal Case No. 7 of 1988, Vidya Ram and Ors. v. State, is set aside. Let a copy of this judgment be sent to the learned Magistrate concerned for proceeding according to law within ten days.