Sukhpal, Madan Gopal and Suresh vs State of U.P. and Daya Shanker Kaushik

Ravindra Singh, J.—This application u/s 482 Cr.P.C. has been filed by the applicants Sukhpal, Madan Gopal and Suresh with a prayer to quash the order dated 8.7.2003 passed by the learned Addl. Chief Judicial Magistrate. Court No. 4, Aligarh in Complaint Case No. 1394 of 2002, whereby the applicants have been summoned to face the trial.

The facts, in brief, of this case are that in the present case, the First Information Report was lodged by opposite party No. 2 on 28.10.2001 at Police Station Iglas, district Aligarh in Case Crime No. 301 of 2001, under Sections 498A, 304B, 201 I.P.C. and Section 3/4 of Dowry Prohibition Act against Gopal, Omvati and wife of Madan Gopal. The case was investigated and charge-sheet dated 28.9.2002 has been submitted against Gopal, Omvati and Meera, under Sections 498A, 304B, 201 I.P.C. and Section 3/4 of Dowry Prohibition Act.

On the basis of the charge-sheet submitted by the Investigating officer, the learned Chief Judicial Magistrate, Aligarh has taken cognizance and summoned the aforesaid accused Gopal, Omvati and Meera to face the trial under Sections 498A, 304B, 201 I.P.C. and Section 3/4 of Dowry Prohibition Act on 11.10.2002 but before the submission of the charge-sheet and during the stage of the investigation of the aforesaid First Information Report, the opposite party No. 2 filed a complaint dated 8.4.2002 in the court of learned Chief Judicial Magistrate, Aligarh vide complaint Case No. 1394 of 2002. In support of the complaint the statement of the complainant was recorded u/s 200 Cr.P.C. and the statements of the witnesses namely P.W.1 Giriraj Kishor, P.W.2 Pushpendra, P.W.3 Rupeyendra , P.W.4 Rajendra Prasad, P.W.5 Minakshi, P.W.6 Vivek, P.W.7 Kusuma, P.W.8 Pushpa Sharma, P.W.9 Rajkumar, P.W. 10 Jugpal, P.W.11 Vippati and P.W.12 Vijai Kumar were recorded u/s 202 Cr.P.C.

After considering the complaint and statements of the witnesses recorded under Sections 200 and 202 Cr.P.C., the learned Additional Chief Judicial Magistrate. Court No. 4, Aligarh took the cognizance against applicants Sukhpal, Madan Mohan, Bhagwati Prasad, Jagannath Lakshman, Achal and Hazarl Lal to face the trial for the offence punishable under Sections 498A, 304B, 201 I.P.C. and Section 3/4 of Dowry Prohibition Act on 8.7.2003. At the time of taking cognizance, the charge-sheet filed by the Investigating Officer against three persons was also available before the learned Magistrate and he has considered the same also and he did not take cognizance against co-accused Gopal, Omvati and Meera because on the basis of the charge-sheet submitted against them the cognizance has also been taken by the learned Magistrate. Against the order dated 8.7.2003 the applicants filed Criminal Revision No. 434 of 2003, the same has been dismissed by learned special Judge/Addl. Sessions Judge, Aligarh on 10.10.2003 by affirming the order dated 8.7.03. The applicants prefer this application u/s 482 Cr.P.C. before this Court being aggrieved from the order dated 10.10.03 passed by the learned Special Judge/Additional Sessions Judge, Aligarh and order dated 8.7.2003 passed by the learned Addl. Chief Judicial Magistrate, Court No. 4, Aligarh.

Heard Sri G.K. Srivastava, learned Counsel for the applicants, Sri H.P. Singh, learned Counsel for the opposite party No. 2 and learned A.G.A. for the State of U.P.

It is contended by the learned Counsel for the applicants that the opposite party No. 2 has lodged the First Information Report only against three persons namely Gopal, Omvati and wife of Madan Mohan, the matter was properly investigated and the charge-sheet was submitted only against Gopal, Omvati and Meera wife of Madan Kohan. Neither in the First Information Report nor during the investigation, any allegation was made by the opposite party No. 2 against the applicants but during pendency of the Investigation, opposite party No. 2 has lodged a complaint against the applicant and nine other persons. The charge-sheet was submitted by the Investigating officer against three persons on 28.9.2002. On the basis of the charge-sheet, the learned Chief Judicial Magistrate, Aligarh has taken cognizance on 11.10.2002 only against three persons, but in the present case the learned Magistrate has taken cognizance on 8.7.2003, by that time the charge-sheet has been submitted and the learned Chief Judicial Magistrate, Aligarh has taken cognizance against three persons, who were charge-sheeted and other papers were also considered by the learned Magistrate concerned. In such circumstances, he was not empowered to take cognizance on the basis of the complaint filed by the opposite party No. 2, order dated 8.7.2003 passed by the learned Magistrate is Illegal. The learned Additional Sessions Judge, Aligarh also did not consider the matter properly and dismissed the revision filed by the applicants on 10.10.2003. The learned Magistrate did not take cognizance as mentioned in Section 210(2) Cr.P.C. The learned Magistrate has not summoned all the witnesses and without recording the statements of the witnesses learned Magistrate had taken cognizance and summoned the applicants. The order of taking cognizance is illegal and learned Magistrate ignored the affidavit, of Vippati and Jagpal and the learned Magistrate did not go through into the facts and without appreciating the allegations made against the applicant passed the order of cognizance. Even the learned Magistrate had not considered the material facts that the applicants were not named in the First Information Report but subsequently they were named by the opposite party No. 2 in the complaint, naming of the applicant was after thought. In the present case, the learned Magistrate had taken cognizance on the basis of the charge-sheet submitted by the Investigating officer and thereafter the case was committed to the court of sessions but the learned Magistrate had committed manifest error in taking cognizance of the case for second time. Therefore the impugned orders taking cognizance passed by the learned Magistrate and the order dated 10.10.2003 passed by the learned Additional Sessions Judge, Aligarh by which the revision filed by the applicant was dismissed, are illegal and are liable to be set aside.

It is opposed by the learned A.G.A. and Sri H.P. Singh, learned Counsel for the opposite party No. 2 by submitting that there is no illegality in the Impugned order because in the present case the First Information Report was lodged by the opposite party No. 2, its investigation was pending but the opposite party No. 2 filed the complaint of the present case giving all the details, which were not given in the First Information Report. The opposite party No. 2 was having no faith on the Investigation dune by the Investigating Officer, the complaint of this case was lodged during Investigation of the case the statements of the witnesses were recorded u/s 202 Cr.P.C. but before taking the cognizance of this case, the Investigating Officer submitted the charge-sheet against three accused persons who were named in the present complaint also. On the basis of the charge-sheet the learned Magistrate had taken cognizance. The learned Magistrate had taken cognizance against the applicants and other co-accused who were not charge-sheeted and cognizance was not taken against those who were charge sheeted therefore it is not second cognizance. First time the cognizance had been taken against the applicants and the learned Magistrate was empowered to entertain the complaint during the pendency of the Investigation and the First Information Report lodged in respect of the same allegations and he is empowered to take cognizance, and on the basis of the complaint and the statements of the witnesses, the learned Magistrate is empowered to take cognizance u/s 210 Cr.P.C. The learned Magistrate did not commit any illegality, therefore the present application is having no substance, it may be dismissed.

From the perusal of the record and considering the submissions made by the learned Counsel for the parties, it appears that in the present case the opposite party No. 2 has lodged the First Information Report against three persons on 28.10.2001. During the pendency of the investigation the opposite party No. 2 filed a complaint dated 8.4.2002 in the court of learned Chief Judicial Magistrate, Aligarh. This complaint was filed against 12 persons including those three persons who were named in the First Information Report. The charge-sheet dated 28.9.2002 was submitted by the Investigating Officer only against three persons namely Gopal, Omvati and Smt. Meera who were named in the First Information Report, on the basis of the charge-sheet the learned Chief Judicial Magistrate, Aligarh has taken the cognizance of the case on 11.10.2002 against three persons namely Gopal, Smt. Omvati and Smt. Meera who were charge-sheeted, opposite party No. 2 has lodged the First Information Report on the same subject matter , the learned Magistrate recorded the statements under Sections 200 and 202 Cr.P.C. and he has sumnoned the police report by which the charge-sheet was submitted against the accused persons and after perusing the same, he has taken cognizance on 8.7.2003 against seven persons only who were not charge-sheeted and he did not take cognizance against three persons namely Gopal, Omvati and Smt. Meera against whom cognizance has already been taken by the learned Chief Judicial Magistrate, Aligarh on the basis of the police report. In the present case, the controversy involved is that the learned Magistrate was not empowered to take cognizance against the applicants while the cognizance was taken against three other co-accused persons on the basis of the charge-sheet by learned Magistrate in respect of the same subject matter.

To deal with this issue/controversy in the present case, it is necessary to consider the provisions of Section 210 of the Code of Criminal Procedure, 1973. Section 210 reads as under:

Procedure_ to be followed when there is a complaint case and police investigation in respect of the same offence-(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer u/s 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which "as stayed by him, in accordance with the provisions of this Code.

According to Sub-section (1) of Section 210, if it appears to the Magistrate, during the course of the inquiry or trial held by him in a case instituted otherwise than a police report, i.e. complaint case , that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. According to this provision, a complaint in respect of the same subject--matter may be filed after lodging the First Information Report or the complaint may be instituted first, thereafter the First Information Report may be lodged. When it is brought to the notice of the learned Magistrate concerned that any investigation is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him , the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the investigating officer.

According to Sub-section (2) of Section 210, if a report is submitted by the investigating officer u/s 173 Cr.P.C. and on such report cognizance of any offence is taken by the learned Magistrate concerned against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

According to Sub-section (3) of Section 210 of Code of Criminal Procedure, if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code. The provisions of Sub-section(3) of Section 210 Cr.P.C. are applicable in the present case because the learned Magistrate had taken cognizance against the applicants who have not been charge-sheeted in the police report and the cognizance has not been taken against them on the basis of the police report, in such circumstances the learned Magistrate was empowered to Inquire into and to take cognizance against the applicant but proceedings of both cases shall be amalgamated but in the present case, the offence is tried by the court of Sessions . The case of the applicant shall also be committed to the court of Sessions by the learned Magistrate and the proceedings arising out of the First Information Report and arising out of the complaint shall be clubbed together and the accused charge-sheeted by the Investigating Officer and the applicants who have been summoned by the learned Magistrate shall be prosecuted by the same competent Judge.

I am of the view that in respect of the same subject matter, a police report u/s 173(2) Cr.P.C. is submitted and the cognizance has been taken against the accused by the learned Magistrate and the complaint has been filed , some more persons including accused who have been charge-sheeted , the learned Magistrate is competent to take cognizance against those accused persons who have not been charge-sheeted and there is no bar for taking cognizance of offence on private complaint against remaining accused. In the present case also, the learned Magistrate has taken cognizance against the remaining accused who were not charge-sheeted by the Investigating Officer and no cognizance was taken by the learned Magistrate on the basis of the police report. The learned Magistrate has not taken cognizance against the accused persons who were already charge-sheeted and cognizance were taken by the learned Magistrate on the basis of the police report against them. The learned Magistrate did not commit any mistake in taking cognizance . The order dated 8.7.2003 taking cognizance against the applicants is perfect. The learned revisional court also did not commit any mistake by affirming the order dated 8.7.2003 and dismissing the revision filed by the applicants, therefore the order dated 8.7.2003 passed by the revisional court is also perfect order. The impugned orders dated 8.7.2003 and 10.10.2003 do not require any interference by this Court, therefore the prayer for quashing the impugned orders is refused and interim order dated 19.12.2003 passed by this Court is vacated.

In view of the above discussion, this application is devoid of the merits and is hereby dismissed.

Office is directed to communicate this order to the court concerned within a weak.