1. Heard learned counsel for the revisionist, learned counsel for the opposite party no.2 and learned Standing Counsel for the State-respondent.
2. This criminal revision has been filed against the order dated 13.02.2015 passed by learned Chief Judicial Magistrate, Jaunpur in Criminal Case No.26 of 2014 (Virendra Kumar Yadav Vs. State), under Sections 419, 420, 504 and 506 I.P.C., Police Station- Kotwali, District- Jaunpur. By the impugned order, the learned Magistrate has taken cognizance for the offence under Sections 419, 420, 504 and 506 I.P.C. against the revisionist/accused Dr. Kalawati Shukla and has issued summon to her.
3. The facts of the case in brief are that the opposite party no.2 filed an application under Section 156(3) Cr.P.C. alleging therein that the applicant is an educated unemployed youth. His maternal uncle- Raj Bahadur Yadav a milkman was supplying milk at the house of opposite party- Dr. Kalawati Shukla. She said to Raj Bahadur Yadav that if there is any unemployed educated youth in his family then she can employ him as there are vacancies in the Family Health Department and she being Chief Medical Officer Badaun has influence in the department, but for this he has to pay Rs.3/- lacs. Knowing this fact from Raj Bahadur Yadav, applicant informed his father and uncle who after selling their land on 24.05.2010 and taking some loan arranged Rs.3/- lacs and the same was paid on 03.06.2010 at 05 p.m. at the house of Dr. Kalawati Shukla in presence of witnesses Ram Chandra, Dev Nath and Raj Bahadur Yadav. He also appeared in the examination held on 12.06.2010 but could not get employment. When he asked about this from Dr. Kalawati Shukla, she threatened him and refused to pay back the money. In the manner, she has cheated the applicant. Learned Magistrate on the aforesaid application directed that the matter be treated as a complaint case and the application was registered as a complaint. The Statement of applicant was recorded under Section 200 Cr.P.C. Two witnesses were examined under Section 202 Cr.P.C.. Thereafter, the learned Magistrate on 10.09.2013 directed the S.H.O. Kotwali, Janupur to investigate the matter and submit the report. In pursuance of that order an F.I.R. bearing Crime No.1222 of 2013 under Sections 419, 420, 504, 506 I.P.C. was registered at P.S. Kotwali and matter was investigated by the police. After completion of the investigation a final report was submitted on 17.12.2013. Applicant filed a protest petition against the final report. By the impugned order, learned Magistrate rejected the final report and taking cognizance of the offence has summoned Dr. Kalawati Shukla to face trial for the offence under Sections 419, 420, 504, 506 I.P.C.
4. Learned counsel for the revisionist contended that the impugned order is absolutely illegal, arbitrary and perverse. Initially, the learned Magistrate passed the order to register the application under Section 156(3) Cr.P.C. as a complaint case and adopted the procedure prescribed under Sections 200 and 202 Cr.P.C. but thereafter, the learned Magistrate adopted a novel procedure not prescribed anywhere in the Code of Criminal Procedure. Learned counsel further contended that Section 202 of the Cr.P.C. contemplates that on receipt of a complaint of an offence the Magistrate may postpone the issue of process against the accused and either inquire into the case himself or direct an investigation by a police officer. However, in the present case, the learned Magistrate has first enquired the matter himself and thereafter directed for investigation. The learned Court below could not have resorted to both the provisions simultaneously and could have taken recourse only to one of the provisions. Thus, the procedure adopted by the learned Court below is illegal and vitiated in the eyes of law. Learned counsel further contended that as per the provisions of Chapter XV of the Code, cognizance of offence can be taken by the Magistrate only in accordance with Section 190(1)(a) or Section 190(1)(b) of the Code. Initially the learned Magistrate has taken cognizance under Section 190(1)(a) by treating the application of Section 156(3) Cr.P.C. as a complaint case but thereafter he passed the order for investigation. The learned Magistrate on the final report adopting the procedure prescribed under Section 190(1)(b) has again taken cognizance of the offence. He committed serious illegality in placing reliance upon the statement of witnesses earlier recorded by him under Sections 200 & 202 Cr.P.C. while taking cognizance on the final report/protest petition and summoning the accused/revisionist. Learned counsel further contended that while taking cognizance under Section 190(1)(b) of the Code, the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and it was not permissible for him at that stage to make use of any other material. Learned counsel placed reliance in the case of Irshad Khan and others Vs. State of U.P. and another 2013 LawSuit (All) 3146.
5. Learned counsel for the opposite party no.2 supported the impugned order and submitted that on the basis of material available the learned Magistrate has passed the summoning order. The revisionist has committed offence by cheating the opposite party no.2 to pay Rs.3/- lacs in the garb of providing employment to him. There is no illegality or infirmity in the impugned order.
6. It is undisputed that the application under Section 156(3) Cr.P.C. filed by the opposite party no.2 was treated as a complaint and the learned Magistrate directed the complainant to produce his evidence. Witnesses were examined under Sections 200 & 202 Cr.P.C.. At this stage, the learned Magistrate vide order dated 10.09.2013 observed that in the circumstances of the present case the investigation by the S.H.O. Kotwali is required and directed him to investigate the matter and submit a report.
It is settled principle of law that under Section 202 Cr.P.C. the Magistrate either himself inquire into the matter or direct that an investigation to be made by by police or such other person he deems fit but he cannot simultaneously proceed in both the manners. When the learned Magistrate has inquired the matter himself under Section 202 Cr.P.C. he was not required to order for the investigation. In pursuance of the order of investigation after registration of an F.I.R. matter was investigated and final report was submitted by the police against which the complainant filed protest petition.
7. It is clear that order of investigation passed by learned Magistrate was under the purview of Section 202 Cr.P.C. Registration of F.I.R. was not required as the learned Magistrate has already taken cognizance under Section 190(1)(a) of the Cr.P.C. It is settled principle of law that Magistrate who has entrusted the investigation under Section 202 Cr.P.C. is not bound by the report of the investigation.
It has been held in the Case of Ramprabesh Rai Vs. Bishun Mandal, 1981 CrLJ 139 by the Division Bench of Patna High Court that the Magistrate who entrusted investigation under Section 202 Cr.P.C. may disagree with the report of investigation and take cognizance.
In Vadilal Panchal Vs. Dattatraya AIR 1960 SC 1113, it has been held that this Section does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is setup on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment.
So, the Magistrate was not bound by the final report submitted by the police after investigation. Once he has taken cognizance under Section 190(1)(a) Cr.P.C. he may have taken into consideration the evidence under Sections 200 & 202 Cr.P.C. only which was available on record to pass any order of summoning. From the impugned order it appears that the learned Magistrate while taking cognizance has taken into consideration all the materials available on the record i.e. evidence under Sections 200 & 202 Cr.P.C., the evidence collected during investigation and objections of complainant filed against the final report. He may have ignored the police report and protest petition submitted against it and should have only taken into consideration the evidence produced under Sections 200 & 202 Cr.P.C. and then should have passed any order either to summon the accused under Section 204 Cr.P.C. or dismiss the complaint under Section 203 Cr.P.C.. So, the impugned order is not sustainable.
8. As the impugned order of summoning dated 13.02.2015 suffers from material illegality, it is hereby set aside with a direction to the learned Magistrate to proceed in accordance with the procedure prescribed in Chapter XV of the Code. Learned Magistrate will give an opportunity to the complainant to produce any other evidence under Section 202 Cr.P.C. if he so desires. After taking into consideration the evidence and material available on record under Sections 200 & 202 Cr.P.C., if the learned Magistrate comes to the conclusion that a prima facie case is made out then he may proceed under Section 204 Cr..P.C. and issue process and if he comes to the conclusion that there is no sufficient ground, he may dismiss the complaint under Section 203 Cr.P.C.
9. The criminal revision is allowed, accordingly. The learned Magistrate to proceed further in the light of the directions made in this order.
Order Date :- 22.12.2021 Sumaira/Krishna*