Ved Prakash Sanghi vs State of U.P. and Another

Bhagwan Din, J.—By means of this application u/s 482, Code of Criminal Procedure , the applicant, Ved Prakash Sanghi seeks for quashing the order dated 13.5.1997, passed by XII, Additional Sessions Judge, Kanpur Nagar, in Criminal Revision No. 210 of 1997, allowing the revision and setting aside the summoning order made by the Magistrate u/s 190(1)(b), Criminal Procedure Code (hereinafter called �Code� for convenience).

The complainant lodged a report at the police station, Gwal Toli, Kanpur Nagar, against the opposite party No. 2, Anand Maheshwari and two Ors., namely. Anil Maheshwari and Santosh Kumar u/s 406/420, I.P.C. with the allegations that he showed his inclination to his acquaintance Santosh Kumar Gupta to sell 500 S.B.I. Magnum shares and purchase 100 shares of each of Tata Iron and Steel, Reliance Capital and Jai Prakash Industries. The accused, Santosh Kumar Gupta introduced broker, Anand Maheshwari and Anil Maheshwari. On the pretext that the S.B.I. Magnum shares could not be disposed of and they had purchased the shares from the above three companies, the complainant has to pay them Rs. 90,000. It is further alleged that the complainant paid the said amount in three instalments but the accused persons did not hand over the shares and thereby committed breach of trust and also misappropriated 500 S.B.I. Magnum shares of the complainant.

The local police, after completing investigation, submitted final report before the Magistrate. On being summoned by the Magistrate, the complainant filed protest petition and prayed for action against the accused persons. The Magistrate perused the assertions made in the protest petition, case diary and the documents appended to the case diary. He was of the view that the allegations made by the complainant in the report prima facie make out a case for summoning the accused persons for trial u/s 406/420, I.P.C.

The accused persons in response to the service of summons, appeared in the Court and filed objection against the summoning order. The Magistrate after hearing the counsel for the parties, rejected the objection by order dated 16.10.1996 on the view that he was competent and empowered to take cognizance against the accused persons even on the basis of the report submitted by the police. Against that order, the accused persons filed Criminal Revision No. 210 of 1997 before the Sessions Judge, Kanpur Nagar. The Criminal revision ultimately came to be decided by XIIth Additional Sessions Judge who by the impugned order dated 13.5.1997 allowed the revision, on the view, that the Magistrate has not recorded the statements of the complainant and the witnesses, before passing the summoning order, and that an enquiry into the offence by the Court of Magistrate u/s 202, Code of Criminal Procedure is necessary before making the impugned order, therefore, the order dated 16.10.1996 passed by the Magistrate is bad in law.

Aggrieved by this order, the complainant approached this Court u/s 482, Code of Criminal Procedure The opposite party No. 2 filed a counter-affidavit contesting the assertions made by the applicant in his application.

Heard Sri Sarvesh, Learned Counsel for the applicant and Sri V.K. Birla, Learned Counsel for the opposite party No. 2. I also heard the learned A.G.A. appearing for the opposite party No. 1 and perused the material available on record.

The contention of the Learned Counsel appearing for the applicant is that the Magistrate may take cognizance against the accused u/s 190(1)(b) of the Code on the basis of the report submitted by the police. He may do so on the basis of the statements of the witnesses recorded by the Investigating Officer and the documents collected by him in the course of investigation, without being bound in any manner by the conclusion arrived at by the police in its report. He urged that the view of the revisional Court, that in the cases, final report has been submitted by the police the Magistrate has no power to take cognizance without observing the procedure contemplated in Chapter XV of the Code, i.e., without recording the statements of the complainant and the witnesses is, not legal and, therefore, deserves to be quashed. On the other hand, the Learned Counsel appearing for the opposite party No. 2 contended that the Magistrate could not take cognizance u/s 190(1)(b) in the cases where final report has been submitted by the police.

In order to appreciate the contentions urged before me, it is necessary to notice the provisions of Section 190 of the Code which sets out different ways in which a Magistrate can take cognizance of an offence, i.e., to say, take notice of an allegation disclosing the commission of a crime with a view to setting the law in motion to bring the offender to book. Under these provisions, the cognizance can be taken, in three ways enumerated in clauses (a), (b) and (c) of the offence alleged to have been committed. The object is to ensure the safety of citizen against the vagaries of the police by giving him the right to approach the Magistrate directly, if the police does not take action or he has reason to believe that no such action will be taken by the police. Section 190(1) empowers the Magistrate to take cognizance upon receiving a complaint of facts which constitute such offence, upon a police report of such facts or upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

The Hon�ble Supreme Court in H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) 1981 SCC 93. held that �in case police files final report, the Magistrate can defer from the police view and can take cognizance straightway u/s 190(1)(b) of the Code. In all cases of final report where there is no formal complaint, the essential basis for the Magistrate taking cognizance is the first information report and the material contained in the case diary, the reason for cognizance being that the Magistrate defers from the conclusion arrived at by the police. The protest petition was not treated as a complaint by the Magistrate and, therefore, it was not necessary for him to record the statement u/s 200, Code of Criminal Procedure and the evidence u/s 202, Code of Criminal Procedure �

In the case of Ram Singh v. U.P. State 1982 ACJ 255, this Court has held that �It is, therefore, clear that the Supreme Court in no uncertain term expressed the view that although a final report is submitted, the Magistrate could on the basis of documents submitted to him u/s 169, Code of Criminal Procedure come to a different conclusion and take cognizance of the offence u/s 190(1)(b) of the Code in spite of the contrary opinion of the police expressed in the final report.�

This Court again in Pratap and Ors. v. State of U.P. and Anr. XXVIII (1991) ACC 422, following the view taken in M/s. India Carat Pvt. Ltd. v. State of Karnataka 1989 Cri LJ 963, was of the view that �upon receipt of a police report u/s 173(2), Code of Criminal Procedure a Magistrate is entitled to take cognizance 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�.

In the cases of Raj Bahadur Singh v. State of U.P. XXXII (1995) ACC 129 and Chetram Gangwar v. State of U.P. XXXII (1995) ACC 241, this Court has made it very clear that �in a police case where the police submits a final report, it is open to the Magistrate to accept the final report or to ask the police to make further investigation u/s 156(3), Code of Criminal Procedure or to disagree with the police report and on the basis of record which is in the shape of case diary which is invariably sent when a final report is submitted, to come to a different conclusion and issue process summoning the accused. It is also not necessary for the Magistrate to pass a detailed order going through the merit of the case, when he summons the accused�. It is further held that in case the Magistrate treats the protest application as a complaint, he has to clearly mention that protest application is being treated as a complaint and once he mentions so that he has to adopt a procedure mentioned in Chapter XV of the Code of Criminal Procedure, namely, examining the complainant u/s 200, Code of Criminal Procedure and the witnesses u/s 202, Code of Criminal Procedure and so on and so forth.

In the case in hand, the Magistrate has not treated the protest petition as a complaint, therefore, having regard to the settled legal propositions, as discussed above, I am of the view that the order of the revisional Court is erroneous and bad in law and deserves to be quashed.

The application is allowed. The impugned order dated 13.5.1997 passed by XIIth Additional Sessions Judge, Kanpur Nagar is hereby quashed and the order dated 16.10.1996 passed by the Magistrate summoning the accused persons to be tried u/s 406/420, I.P.C. is upheld.