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Govinda Son Of Krishna Murari ... vs State Of Uttar Pradesh And Shiv ...

High Court Of Judicature at Allahabad|31 January, 2008


1. This revision has been filed questioning the legality of the order dated 30.8.2007 and in support of the submissions advanced, a supplementary-affidavit has been filed stating therein that the court below has committed a manifest error by summoning the applicants on the strength of the signed statements of Shiv Mangal, Naresh Kumar Singh and Sheelu, which is an erroneous procedure for the purposes of Section 190(1)(b) Cr.P.C. inasmuch as the Magistrate has relied on extraneous material which did not form part of the case diary. Sri Manish Tiwari contends that the ingredients of a police report cannot include the signed statement of any person as there is a complete bar to the admissibility of such a statement under Section 162 Cr.P.C.
2. The question, therefore, that arises for consideration is as to whether the Magistrate has erred in proceeding to summon the applicants only on the basis of the said statements which are alleged to have been signed by them and whether in case such a course was to be adopted, then the proceedings ought to have proceeded under Section 190(1)(a) Cr.P.C.
3. Sri Tiwari has urged that the direction issued by the Magistrate to proceed with the case as a state case and the reasons given for rejecting the report of the police did not make out a case for proceeding under Section 190(1)(b) Cr.P.C. Sri Tiwari has also invited the attention of the Court to the statements of the other witnesses which are indicated in Parcha No. 2 and has urged that in view of the said statements, there was absolutely no material on the basis whereof the cognizance could have been taken for summoning the applicants. It is also urged that apart from this, there is absolutely no material on the basis whereof any opinion could be formed for summoning the applicants.
4. I have perused the records and it appears that the opposite party No. 2 - Shiv Mangal is an accused in case Crime No. 376 of 2002 wherein the alleged incident is of the same date i.e. 6.11.2002 on which date the opposite party No. 2 alleges to have sustained injuries himself. The case of the opposite party No. 2 is that he sustained firm arm injuries as a result of the assault by the applicants but he was falsely implicated even though he had went to the police station to get his own case registered. It is also on record that the opposite party No. 2 - Shiv Mangal was apprehended and he was released on 16.12.2002 from Jail. It is thereafter that he attempted to get an F.I.R. lodged on the basis of the alleged injuries which are claimed to have been sustained by him on 6.11.2002 itself. Having failed to get his F.I.R. registered, he moved an application under Section 156(3) which was rejected on 30.1.2003 by the learned Magistrate holding that the opposite party No. 2 was trying to develop a cross case after having been implicated in the case in which he was facing trial.
5. The Court also recorded that in case the version of Shiv Mangal was correct that he had gone to the police station to get the case registered, he would have been apprehended there on the same day and further in the police report, it was also indicated by the Circle Officer upon a spot inspection being made by the Addl. Superintendent of Police and Senior Superintendent of Police, wherein it is indicated that no such incident as alleged by Shiv Managal had occurred. The opposite party No. 2, however, went up in a revision against the said order which was allowed on 7.4.2003 by the learned Sessions Judge on the ground that prima facie Shiv Managal had sustained gunshot injuries and, therefore, the matter ought to have been investigated through the police and hence a direction was issued for registering a case and to carry out an investigation. Pursuant to the aforesaid order dated 7.4.2003, the F.I.R. was registered and the investigation was carried out. The police submitted a report in favour of the applicant stating therein that no case was made out for prosecuting the applicant against which a protest petition was filed by the opposite party No. 2 and the report of the police was rejected and the applicants have been summoned by the impugned order dated 30.8.2007.
6. Sri Tiwari has urged that the order is erroneous inasmuch as firstly no reliance could be placed on the statements that are allegedly in writing and signed by Shiv Managal, Naresh Kumar Singh and Sheelu. He contends that these statements are contained in a piece of paper duly signed by them and, as such, keeping in view the bar contained in Section 162 Cr.P.C., the same, being in admissible in evidence, could not form the basis of the summoning order.
7. Secondly, it is urged that the statement of the other witnesses completely belie the allegations made by the opposite party no.2 and the same indicate that no such incident had taken place. In such a situation, Sri Tiwari contends that there was no material in these statements so as to warrant summoning of the applicants.
8. Thirdly, it is urged that the Magistrate has not appreciated the provisions of Section 190 Cr.P.C. in correct perspective inasmuch as he could have proceeded with the case as a complaint case in case he wanted to and should not have treated the case to be one under Section 190(1)(b) Cr.P.C.
9. Having considered the submissions advanced on behalf of the applicants and having heard the learned A.G.A., it would be appropriate to refer to the decision in the case of State of Rajasthan v. Teja Ram which is quoted herein below for ready reference:
28. Learned Counsel in this context invited our attention to one step which PW 21 (investigating officer) had adopted while preparing the seizure-memos Ex. P-3 and Ex. P-4. He obtained the signature of the accused concerned in both the seizure-memos. According to the learned Counsel, the aforesaid action of the investigating officer was illegal and it has vitiated the seizure. He invited our attention to Section 162(1) of the Code which prohibits collecting of signature of the person whose statement was reduced to writing during interrogation. The material words in the sub-section are these:
162. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it;
No doubt the aforesaid prohibition is in peremptory terms, it is more a direction to the investigating officer than to the court because the Policy underlying the rule is to keep witnesses free to testify in court unhampered by anything which the police claim to have elicited from them. (Tahsildar Singh v. State of U.P. and Razik Ram v. Jaswant Singh Chauhan). But if any investigating officer, ignorant of the said provision, secures the signature of the person concerned in the statement, it does not mean that the witness's testimony in the court would thereby become contaminated or vitiated. The court will only reassure the witness that he is not bound by such statement albeit his signature finding a place thereon.
29. That apart, the prohibition contained in Sub-section (1) of Section 162 is not applicable to any proceedings made as per Section 27 of the Evidence Act, 1872. It is clearly provided in Sub-section (2) of Section 162 which reads thus:
Nothing in this section shall be deemed to apply to any statement falling within the provisions of Clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
30. The resultant position is that the investigating officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing seizure-memo for the recovery of any article covered by Section 27 of the Evidence Act. But if any signature has been obtained by an investigating officer, there is nothing wrong or illegal about it. Hence, we cannot find any force in the contention of the learned Counsel for the accused that the signatures of the accused in Exs. P-3 and P-4 seizure-memos would vitiate the evidence regarding recovery of the axes.
10. A perusal of the ratio of the aforesaid decision would leave no room for doubt that the bar of 162 operates against the investigation agency but not against the Court. The Court has further gone to hold that if any signature has been obtained by the investigating Officer, there is nothing wrong or illegal about it. The Court has further held that securing of such a signature does not mean that in case the witnesses further come forward to give their testimony in Court, the same would not make the trial contaminated or vitiated. The court will only re-assure the witnesses at the time of testimony that they are not bound by such statements merely on account of his signature being affixed on the said statement. This decision, therefore, indicates that the jurisdiction of the court to take cognizance is not fettered in a case where a statement has been obtained on a piece of paper duly signed by a witness. In this view of the matter, the contention raised by Sri Tiwari that the bar of 162 operates to prohibit the court from taking cognizance, cannot be accepted.
11. The other ground taken about the statement of the other witnesses, who are alleged to have belied the prosecution story, cannot be countenanced because the Magistrate, after applying his mind, has indicated that the said statements are of such witnesses who have an enmity with the opposite party No. 2 - complainant. The Magistrate has further gone to record that the investigating officer has deliberately not investigated the matter correctly in order to favour the applicants. The report submitted by the police was, therefore, disbelieved. In this connection, it is to be noted that the powers of the Magistrate are wide enough and not only this, the Magistrate can ignore the conclusion arrived at by the investigating officer and apply his mind independently to the facts emerging from the investigation and take cognizance of the case. This position has been explained by the Apex Court in the case of Minu Kumari v. State of Bihar quoted herein below:
10. In Abhinandan Jha v. Dinesh Mishra this Court while considering the provisions of Sections 156(3), 169, 178 and 190 of the Code held that there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code that there is no case made out for sending up an accused for trial. The functions of the Magistrate and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c).
11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise: the report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he again has option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground from further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 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 the statements of the witnesses examined by the police during the investigation and take cognizance 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 cognizance 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 cognizance of the case, if he thinks fit, exercise his powers under Section 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 under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also, (see India Carat (P) Ltd. v. Sate of Karnataka.)
12. The aforesaid decision also answer the third point raised by Sri Tiwari and, therefore, it cannot be said that the Magistrate was not justified in summoning the applicants. After taking stock of the entire situation and the injuries sustained by the opposite party No. 2, the Magistrate indicated that the spot inspection report indicates the existence of assault by gun fire as there were pellet marks found embedded in the wall. The investigating officer according to the Magistrate has taken the statements of those who were allegedly present on the spot and has, therefore, after applying his mind, arrived at the conclusion which cannot said to be a result of non-application of mind or taking into account of any extraneous material.
13. Having considered the aforesaid submissions advanced, I see no ground to treat the order dated 30.8.2007 to be suffering from any illegality so as to warrant exercise of jurisdiction under Section 397 Cr.P.C. The revision, therefore, lacks merits and is, accordingly, dismissed.
14. However, keeping in view the nature of the litigation and the manner in which the applicants are sought to be prosecuted in an alleged cross case, the courts below shall consider their bail applications if applied and dispose them of as expeditiously as possible preferably on the same day.
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Govinda Son Of Krishna Murari ... vs State Of Uttar Pradesh And Shiv ...


High Court Of Judicature at Allahabad

31 January, 2008
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