Uma Shanker and Others vs State and Another

P.N. Bakshi, J.—A FIR was lodged on 24th November, 74 by one Chhetai at police station Kotwali, City Mirzapur, against 13 persons for the commission of offences under Sections 302, 307, 147, 148 and 323 IPC. The case was investigated by the police of police station Pandari, and a charge-sheet was submitted against 7 accused-persons viz. Kallu and others. One accused Doodhanath died during the pendency of the investigation. According to the instant application.

filed under Sections 482 Code of Criminal Procedure the allegations in para 3 of the affidavit, accompanying thereto, are that no charge-sheet was submitted by the police against the remaining 5 accused-persons. It was informed that the matter was pending investigation. Kallu and others were committed for trial to the court of sessions. Thereafter, it appears that an application was moved by Chekhuri in the court of Chief Judicial Magistrate, Mirzapur, vide annexure I, filed along with the application u/s 482 Code of Criminal Procedure. In this application, it was mentioned that the police had submitted a collusive final report against five accused-persons, viz. Rama and others and it was prayed that the court may take cognizance of the offence and summon the accused. It appears that the Sessions Trial No. 67 of 1976 against 7 accused persons (Kallu and others) resulted in their conviction on 17th Jaunary 1978. On 1st February, 1978 the Chief Judicial Magistrate, Mirzapur, took cognizance of the offence against Rama and others and summoned them on the basis of the applications filed by Chekhuri. Aggrieved thereby a revision was filed before the IV Addl. Sessions Judge, Mirzapur, which has been dismissed on 19th January, 1979 hence the instant application u/s 482 Code of Criminal Procedure by Rama and others.

I have heard learned Counsel for the parties at a considerable length and have also perused the affidavits and annexures filed in this Court.

Learned Counsel for the applicant has argued that the Chief Judicial Magistrate Mirzapur had acted illegally in taking cognizance of the offence u/s 190(c) Code of Criminal Procedure. He submits that the application filed by Chekhuri (annexure No. 1) gives all the allegation pertaining to the offence in question and therefore, it was covered by the definition of complaint as laid down in Section 2(d) Code of Criminal Procedure as such the Magistrate could only take cognizance of the offence u/s 190(a) Code of Criminal Procedure and therefore, he was bound to follow the procedure prescribed in Section 200 Code of Criminal Procedure relating to complaints filed before the Magistrate. He should have summoned the complainant and his witnesses and thereafter, if he found that the prima facie case has been made out, he could summon the accused.

From a perusal of the orders of the courts below it appears that cognizance has been taken u/s 190(c) Code of Criminal Procedure by the Chief Judicial Magistrate, Mirzapur, after he had perused the contents of the application of Chekhuri and looked into the first information report; the record of the Sessions Trial No. 67 of 1976, and also the judgment dated 17th January, 1978 passed by the IV Addl. Sessions Judge, Mirzapur. The Chief Judicial Magistrate Mirzapur opined that it was a fit case for taking cognizance. While dealing with this question, the Sessions Judge was of the opinion that "the crux of the matter is the source of the information". In his view the source of the Magistrate''s information was the application of Chekhuri and not the papers furnished by the police. The application contained all the ingredients of the offence and the facts constituting the same. The perusal of the first information report and the case diary by the Magistrate would not change the position because the initial source of information was the application of Chekhuri. On this reasoning the Sessions Judge was of the view that the Magistrate had jurisdiction to take cognizance of the offence on the basis of the information received from Chekhuri u/s 190(c) Code of Criminal Procedure.

Having carefully considered the submissions made by the parties'' counsel, I am of the opinion that this question can be tackled from two points of view. Section 173 Code of Criminal Procedure refers to the submission of the report by the police officer, after the completion of the investigation. It would be pertinent to quote the relevant portion of this Section. 173(1):Every investigation under this Chapter shall be completed without un-necessary delay. (2) (i) As soon as it is complete, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating.........(a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if whether with or without sureties; (g) whether he has been forwarded in custody u/s 170.

To my mind Section 173(2)(d) Code of Criminal Procedure quoted above, is very relevant. The report has to indicate whether any offence appears to have been committed and if so, by whom. In other words supposing there are 12 accused, as in the instant case, the report should indicate as to which of those accused appear to have committed the offence. In other words, the report should specify that 7 of them appeared to have committed the offence for whom the charge-sheet was submitted, whereas the 5 others accused have not committed the offence for whom the final report was submitted. In the present case, as mentioned above, the charge -sheet was submitted against 7 accused-persons who have been brought to trial and subsequently convicted by the Sessions Judge. So far as rest of the five accused are concerned, the position is thus. According to the allegations in para 3 of the affidavit, filed along with this application u/s 482 Code of Criminal Procedure no charge-sheet was submitted against them as it was informed that the matter is still under investigation. According to the application of Chekhuri a final report has been submitted with regard to these five persons and he had mentioned that this report was collusive, because the local police are influenced by Girja, a fellow constable, who was the brother of Rama co-accused. These allegations of collusion are also supported by the observations made by the Sessions Judge in para 11 of his judgment convicting the seven co-accused. He prayed that the court may take cognizance of the offence.

I have been referred to a number of Rulings of the Supreme Court in support of the proposition that after the submission of the final-report, if a protest petition is filed by the complainant, then the Magistrate has jurisdiction to take cognizance of the offence u/s 190(c) Code of Criminal Procedure. A reference may be made in this connection to Ragubans Dubey v. State of Bihar 1968 ACC 69, Hareram Satpathy v. Tikaram Agarwal 1978 ACC 356. In these Supreme Court cases it has been held that "when 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

I have also been referred in this connection to a Division Bench Case of our Court. Ram Chandra v. State 1970 ACC 315 in which it has been held that "If a charge-sheet is submitted by the police, it is open to the Magistrate either to take cognizance u/s 190(1)(b) or to refuse to take cognizance. Likewise if a final report is submitted by the police, it is open to the Magistrate either to accept the final report and drop the matter or to take cognizance u/s 190(1)(c).

My attention has further been invited to another decision Abhinandan Jha and Others Vs. Dinesh Mishra, . Relying upon this, emphasis is laid upon the expression ''protest petition''. The argument is that if a "protest petition-'' is filed against the final report, then it is open to the Magistrate to take cognizance of the offence u/s 190(c) Code of Criminal Procedure.

Unfortunately the expression "Protest Petition" does not find expression any where in the Code of Criminal Procedure. Admittedly such a petition by whatever name it may be called, is nothing more than an objection to the final report, filed by the police, after concluding investigation to the effect that no case is made but against the accused. In cases of Calcutta a ''protest petition'' has been interpreted to be a ''Narajagi petition''. The translation of ''protest petition'' as a ''Narajagi Petition'' is no-doubt interesting, but in its ultimate result it merely indicates an opposition to the finding arrived at by the police with regard to the innocence of the accused by the submission of final report to the Magistrate.

I had granted time to the counsel for the parties to enquire and let me know whether as a matter of fact a final report has been filed in this case or not, but inspite of time being granted counsel for the both the parties were unable to disclose the correct position. If the allegation in the application of Chekhuri are correct, then a final report has been submitted and the application of Chekhuri amounts to a "protest petition" or a "Nirajagi petition". In that case this application would amount to other information as defined in Section 190(1)(c) Code of Criminal Procedure and it is open to court to take congizance under that section.

If, however, no final-report has been submitted the position would be that according to the allegation of Chekhuri the police is delaying the investigation by not submitting any report whatsoever with respect to the five accused-persons, as required by Section 173 Code of Criminal Procedure. They are neither submitting a charge-sheet nor they are submitting a final report. There is not doubt in the legal position that the Magistrate can not force the Investigating Officer to submit the result of the investigation u/s 173 Code of Criminal Procedure to it, but if the Magistrate derives information from any other source there is nothing in law to bar the Magistrate from taking cognizance u/s 190(1)(c) Code of Criminal Procedure. Narajagi may be expressed by the complainant or the injured party, not only by protesting against the submission of a collusive and incorrect final report, but it can also be expressed by the party concerned against the non-submission of the report and the dilatory tactics adopted by the investigating agency in the submission of the report. While expressing this Narajagi, there may be an expression in the protest petition itself giving details of the offence and requesting the Magistrate to take cognizance of the same. To my mind, the delay or non-submission of the final report, will not take away the rights of an aggrieved party viz. complainant or injured persons from bringing to the notice of the Magistrate that an offence has been committed by some accused-persons with respect to whom no report has been submitted u/s 173 by the police, inspite of it being a fit case, in which the Magistrate should take cognizance on the information supplied to him by the aggrieved party. In my opinion, merely because this information contained the details of the offence as is also required in a complaint it does not debar the Magistrate from proceeding to take cognizance u/s 190(c) Code of Criminal Procedure. In the instant case out of 12 accused persons the case was already proceeding against seven accused persons when the application was filed by Chekhuri. Before any final order could be passed, on this application these seven accused have also been convicted and the material on the record indicates that the police of Pindari was being wrongly influenced by Girja the brother of Rama accused in not submitting its report u/s 173 Code of Criminal Procedure. In these circumstances, the Magistrate was fully justified in taking cognizance of the offence u/s 190(1)(c) Code of Criminal Procedure and in summoning the accused.

For the reasons given above, I am of the opinion that no illegality has been committed by the courts below in passing the impugned orders. There is, thus, no merit in this application u/s 482 Code of Criminal Procedure, which is hereby dismissed.