Smt. Mamta Kanojia @ Pinki vs Devesh Kumar Kanojia and State of U.P.

S.K. Jain, J.—This Application u/s 482 Cr.P.C. has been made to stay the effect and operation of order dated 18.1.2008 passed by Chief Metropolitan Magistrate, Kanpur Nagar in Misc. Case No. 711 of 2007 in Case Crime No. 487 of 2007 under Sections 323 504 506 498A IPC and Section 3/4 Dowry Prohibition Act, Police Station Chakeri, District Kanpur Nagar and also to stay further proceedings of the aforesaid case.

The facts to this case are that applicant lodged an FIR on 13.6.2007 at Police Station Chakeri, which was registered as Case Crime No. 487 of 2007 under Sections 323, 504, 506, 498A IPC and Section 3/4 Dowry Prohibition Act The investigating officer during investigation recorded the statement of applicant, her mother, father and brother u/s 161 Cr.P.C., but the police submitted the final report in favour of respondent No. 1. The applicant filed protest petition on 17.9.2007 before the Chief Metropolitan Magistrate, Kanpur Nagar and the learned Chief Metropolitan Magistrate rejected the final report submitted by the police and registered the protest petition as a complaint case.

It has been argued by the learned Counsel for the applicant that on the basis of FIR and medical report of the applicant and statements recorded u/s 161 Cr.P.C., the case under Sections 323 504 506 498A IPC and Section 3/4 Dowry Prohibition Act was made out and the learned Magistrate erred in treating the protest petition as a complaint case.

The learned Magistrate could ignore the conclusion arrived at by the investigating officer that no case against respondent No. 1 was made out and on the basis of statements of complainant, her mother, father and brother recorded, the learned Magistrate u/s 190(1)(b) could direct the issue of process to the accused.

The Hon''ble Apex Court in the case of India Carat Pvt. Ltd. Vs. State of Karnataka and Another, has laid down in paragraph 16 as follows:

Para 16. The position is therefore, now well settled that upon receipt of a police report u/s 173(2) a Magistrate is entitled to take cognisance 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 die statements of die witnesses examined by the police during the investigation and take cognisance 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 cognisance 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 cognisance of me case, if he thinks fit, in exercise of 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. The High Court was, therefore, wrong in taking the view that the Section Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.

Learned Counsel for the applicant has cited the case of Sanjay Bansal and Anr. v. Jawaharlal Vats XLIX 2007 ACC 1050 in which a similar view was taken by the Hon''ble Apex Court.

In the case of Pakhando and Ors. v. State of U.P. and Anr. (XLIII) 2001 ACC 1096 it has been laid down by this Court that when a final report is submitted in a case and is received by the Magistrate the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:

(i) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or

(ii) he may take cognizance u/s 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

(iii) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

(iv)he may, without issuing process or dropping the proceedings decide to take cognizance u/s 190(1)(a) upon the original complaint or protest petition treating the same as complain and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

The learned Chief Metropolitan Magistrate in the present case adopted the fourth option available to him instead of taking cognisance u/s 190(1)(b) on the basis of statements of the complainant and the witnesses recorded during the investigation. Since this option was available to the learned Magistrate to treat the protest petition of the applicant as a complaint case, I do not find any force in this Application u/s 482 Cr.P.C. in the light of the above law. Since the learned Chief Metropolitan Magistrate exercised the fourth option aforesaid as per the law laid down in the case of Pakhando and Ors. v. State of U.P. and Anr., as quoted above, no interference in the matter is called for u/s 482 Cr.P.C.

The Application u/s 482 Cr.P.C. is dismissed.