As both these petitions under section 482 Code of Criminal Procedure (For short "Cr.P.C.") are arising out of same incident on the basis of two different First Information Reports (for short ''FIR') lodged on two different dates by the same person against the petitioners , they are being disposed of by common judgment.
Brief facts for deciding these petitions are that petitioners Hari Shankar Singh and Rama Shanker Singh (now stated to be died) were tenure holders of Gata No. 800M situate in village Deoria Bujurg, Tehsil Alapur, District Ambedkar Nagar having an area 0.172 hectare. In the same village Gata no. 572 having area 0.032 hectare was recorded in the name of Junior High School Deoria Bujurg in Khatauni of 1409 to 14014F. The consolidation authority of District Ambedkar Nagar in Case No. 132 Hari Shanker Singh Vs. Nageshwari, decided on 1.9.1998 under Rule 109A ordered for mutation of the name of petitioners over Gata no. 800M having area 0.172 hectare . No order was passed in respect of Gata no. 572 in the aforesaid proceedings. However, the names of the petitioners were entered in Gata no. 572 which was actually belongs to Junior High School Deoria Bujurg. In this regard, a complaint was lodged by one Ram Daras Pandey opposite party,(For Short 'RDP') in both cases. On the basis of the complaint of RDP, Naib Tehsildar, Tehsil Alapur, District Ambedkar Nagar gave its report on 10.1. 2009 specifying the facts that there was no order of entering the names of the petitioners over Gata no. 572. The names entered of the petitioners over gata no. 572 is without any order and requires correction and their names entered over gata no. 572 are liable to be scored off. On the basis of this report, the Tehsildar Alapur, District Ambedkar Nagar, submitted its report to the Sub Divisional Officer, Alapur, District Ambedkar Nagar. It was also mentioned therein that order mutating the name of Junior High School in Gata No. 800M was not passed by the consolidation authority. So, the names of petitioners recorded in Gata no. 572 and name of Junior High School recorded in Gata no. 800M are not in accordance with the order passed by the consolidation authority on 1.9.1998. On the basis of this report, the proceedings under section 33/39 of the Land Revenue Act(For short 'LR Act'), Ram Daras Pandey Vs. Harishanker Singh and others were initiated wherein the Sub Divisional Officer corrected the record in terms of the order of the consolidation authority. The said order has been put to challenge in Revision bearing no 339/912 under section 219 of the LR Act before Additional Commissioner, Faizabad Division, Faizabad. The said order was set aside and the revisional court directed to make compliance of the orders passed by Hon'ble High Court and Hon'ble Supreme Court affirming the orders passed by consolidation authorities ,so, the order should be complied with. In the meantime, the Tehsildar, Alapur, District Ambedkar Nagar vide its letter dated 16.3.2009 directed S.O. of police Station Jahangirgang, District Ambedkar Nagar to register FIR in this matter of making fake entry in revenue record with the connivance of the petitioners. In pursuance thereof, the FIR was lodged on 28.04.2009 at case crime no. 164/09 under sections 419,420,466,467,468,471 IPC at P.S. Jahangirganj, District Ambedkar Nagar on the basis of complaint made by RDP, the opposite party. The perusal of this FIR reveals that according to RDP, Gata no. 572 having area 0.032 hectare is entered in the name of Junior High School and Gata no. 800M having area 0.172 was entered in the name of one Som Nath son of Dhodha and Ramshanker Singh son of Late Janki Prasad Singh. The petitioners applied under Rule 109A for mutating their names over Gata no. 800M,in place of Som Nath in Case No. 132 before consolidation authority and the name of petitioners Hari Shanker Singh and Ram Shanker Singh was ordered to be mutated. But by manipulating things the petitioners with connivance of revenue authorities got the their names entered in Gata No. 572 which belongs to Junior High School and the name of Junior High School was entered at Gata No. 800M. The same was not in terms of the order passed by the consolidation authority. For the aforesaid act, the petitioners with the connivance of revenue authorities tempered the mutation made in the dispatch register and for that, he filed certain documents in support of his claim along with FIR. After lodging of the FIR, an order was passed on 28.8.2009 by the Sub Divisional Officer, Alapur, District Ambedkar Nagar in proceedings under section 33/39 of the Land Revenue Act to correct the record in terms of the order dated 1.9.1998. The name of Junior High School was scored off from Gata No. 800M and names of petitioners Hari Shanker Singh and Rama Shanker Singh were entered in Gata No. 800M. Similarly, the name of petitioners Hari Shanker Singh and Rama Shanker Singh were scored off from Gata No. 572 and name of Junior High School was entered/restored in Gata No. 572 in revenue records. None of the parties challenged the said order and the same was implemented by incorporating the name according to the order of consolidation authorities. Thus,the order dated 28.8.2009 became final. The police after investigation of the case submitted final report.
It is also pertinent to mention here that another application has been moved by RDP, the opposite party under section 156 (3) Cr.P.C. In pursuance thereof, the second FIR was lodged at case crime no. 701 of 2010 under sections 419,420,467,468 IPC at police station Kotwali Akbarpur, District Ambedkarnagar on 23.5.2010 in respect of the same dispute of entry made in Gata No. 572 of the names of Harishanker Singh and Rama Shanker Singh.This case was also investigated by police. After investigation of the same, the police submitted final reports in this case also.
Against both these FRs Ram Daras Pandey, opposite party filed separate protest petitions. By order dated 15.4.2011 the final report was rejected which has been filed in case crime no. 701 of 2010 under the aforesaid sections at P.S. Kotwali Ambedkarnagar and the learned Chief Judicial Magistrate, Ambedkar Nagar has taken cognizance under section 190 (1) (b) of Cr.P.C. against the petitioners under sections 419,420,467,468 IPC. The learned Magistrate after considering protest petition supported with affidavit , case diary and other material available on record passed the order taking cognizance, which was assailed in Criminal Case No. 2360 of 2012.
In the matter of FR submitted in relation to FIR lodged earlier at case crime 164 of 2009 at P.S. Jahangirganj District Ambedkarnagar in respect of the same incident the court of Chief Judicial Magistrate, Ambedkar Nagar, rejected the FR vide its order dated 20.4.2010 after considering the material available in case diary, the affidavit filed in support of protest petition and other documents and circumstances available on record and Chief Judicial Magistrate straightaway summoned the petitioners in the light of the section 190 (1)(b) Cr.P.C. This order has also been assailed in Criminal Case No. 2653 of 2010 .
It is not in dispute at bar that both these FIRs are relating to same incident, one has been lodged on the basis of the complaint of RDP in pursuance of order passed by the Tehsildar and other on the basis of application moved under section 156(3) Cr.P.C.by RDP, the opposite party.
Heard Shri R.B.S. Rathaur, learned counsel for the petitioners , Shri Anil K. Tripathi, learned counsel for private opposite party and learned AGA for State.
Learned counsel for the petitioners has submitted that as these two cases are relating to same incident, therefore, the investigation made in respect of IInd FIR is without jurisdiction and the order taking cognizance on the basis of such police report relating to subsequent FIR would be an abuse of process of court.
It has been further submitted that in both these cases, the cognizance has been taken under section 190 (1) (b) Cr.P.C. by the learned Magistrate. But it is well settled that learned Magistrate can take cognizance under section 190 (1)(b) Cr.P.C. only on the basis of material available in police report and if he takes cognizance under section 190 (1)(b) after considering other material which does not find place in police report, the cognizance would be bad in law. The learned Magistrate in that situation could proceed only under Chapter XV of Cr.P.C. treating the protest petition as complaint. It is further submitted that when the learned Magistrate differs with the opinion of the investigating officer by rejecting the final report submitted by the police, he must have assigned reasons for doing so by speaking and reasoned order . It is also submitted that from the perusal of the order impugned it is clear that no reason has been given of forming different opinion to the opinion of investigating officer. It is also submitted that learned Magistrate while taking cognizance straightaway under section 190(1)(b) Cr.P.C. only mentioned in its order that sufficient material is available on record to proceed against the accused persons. This does not fulfill the requirement under the law.
The learned counsel for the opposite parties submitted that while passing the order taking cognizance the Magistrate does not require to assigned any reason. Hence the same cannot be set aside on this ground. He further submitted that unless it is demonstrated that the material available in the police report is not sufficient to proceed against the accused persons by taking cognizance under section 19(1)(b), the order impugned cannot be set aside on the ground that learned Magistrate also considered the affidavit filed in support of the protest petition. It is also submitted that even if two FIRs were lodged for the same incident then in that event both cases may be consolidated and may be tried by one and the same court but merely for this simple reason the cognizance taken in the first case cannot set at naught.
Learned AGA has submitted that there is no sufficient evidence against the petitioners in the police diary. Therefore, the final report has rightly been submitted by the police in the court of Chief Judicial Magistrate, Ambedkar Nagar. However, he did not say about propriety of the order impugned passed by the Chief Judicial Magistrate, Ambedkar Nagar in both cases.
I have considered the submissions of the learned counsel for the parties and perused the record.
In Meenu Kumari Vs. State of Bihar and others 2006 SCC 359 SC the Hon'ble Supreme court has categorically held that when the final report is submitted, the Magistrate has four options:-
In both these cases, the learned Magistrate not only proceeded on the basis of police papers contained in the police report, but also considered the evidence filed in the form of affidavit along with protest petition while taking cognizance under section 190 (1)(b) Cr.P.C., which is contrary to the ratio of the Apex Court as has been held in Meenu Kumari's case (Supra). Thus the impugned order suffers from jurisdictional error and cannot be allowed to sustain.
I have considered the submissions of the Counsels for the parties and perused the record of the case. Summoning of accused in a criminal case is a serious matter and should not be be allowed to take in a routine manner. The learned Magistrate should apply his mind while doing so and should not act mechanically and in routine manner as held in Magsood Alam Vs. State of Gujrat (2008) 5 SCC 668.
it is well settled principle of law that every order passed by quasi-judicial or judicial authority, must be speaking and reasoned, as held in following cases:-
-K.R. Deb Vs. The Collector of Central Excise, Shillong, AIR 1971 SC 1447
-State of Assam & Anr. Vs. J.N. Roy Biswas, AIR 1975 SC 2277
-State of Punjab Vs. Kashmir Singh, 1997 SCC (L&S) 88 -
-Union of India & Ors. Vs. P. Thayagarajan, AIR 1999 SC 449
-Union of India Vs. K.D. Pandey & Anr., (2002) 10 SCC 471,
-Assistant Commissioner, Commercial, Tax Department, Works, Contract and Leasing, Quota Vs. Shukla and Brothers (JT) 2010(4) SC 35,
-CCT Vs. Shukla and Brothers 2010 (4) SCC 785.
In the case of Shukla and Brothers (supra), their lordships held that the reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases. such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty, to quote:-
"Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principle are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements."
The concept of reasoned judgement has become an indispensable part of the basic rule of law and , in fact, is a mandatory requirement of the procedural law."
In an other case, reported in JT (2010 (4) SC 35: Assistant Commissioner, Commercial, Tax Department, Works, Contract and Leasing, Quota. Vs. Shukla and Brothers, their lordships of Hon'ble Supreme Court held that it shall be obligatory on the part of the judicial or quasi judicial authority to pass a reasoned order while exercising statutory jurisdiction. Relevant portion from the judgment of Assistant Commissioner (supra) is reproduced as under:-
"The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with high degree of satisfaction. The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between passing of an order by an administrative or quasi-judicial authority has practically extinguished and both are required to pass reasoned orders."
Thus, it is well settled proposition of law that not only the administrative order affecting the civil rights of the citizens, but even judicial or quasi-judicial order should also be reasoned one to cope with the requirement of Article 14 of the Constitution. Unreasoned order creates instability and distrust in people's mind towards the administration or the authority who has passed such order. In democratic polity, there is no scope to pass an order affecting civil rights of the citizens which may be unreasoned. It is constitutional obligation and right of the citizens to know the reasons in the decision making process affecting their right or cause.
Specially, when the investigating agency had concluded that there is no material to proceed against the accused persons the responsibility of the learned Magistrate becomes much higher during course of consideration for taking cognizance against the accused persons than in ordinary matter where the police filed charge sheet against the accused. I am of the firm view that in case the learned Magistrate disagreed with the police report, than, it would be necessary to the the learned Magistrate to record the reason for difference of opinion. The reason must also demonstrate what evidence in the police report was found sufficient for taking cognizance against accused person.
If Learned Magistrate is of the opinion that there is reason to differ with the opinion of investigation officer expunging the case by submitting final report/closer report he has three option.
The first option is to order for further investigation under section 156(3) Cr.P.C. in case he forms the opinion that investigation has not been properly and fairly conducted or the police report is not based on full and complete investigation as held in Abhinandan Jha and others vs. Dinesh Mishra, AIR 1968 SC 117. But while ordering further investigation under section 156(3) Cr.P.C. can not direct or call upon police to submit charge sheet against the accused because the submission of report depends entirly upon the opinion formed by the police and not on the opinion of Magistrate. After such further investigation if the police again filed final report the Magistrate may or may not agree with the report. Where he disagrees and form an opinion that the fact mentioned in the report constitute an offence , he can take cognizance under section 190(1)(a) or190(1)(c) as held in M.C.Mehta (Taj Corridor Scam) v.Union of India and others,(2007)1 SCC (Cri) 264.
The fair, impartial and judicious investigation is the right of both the parties, i.e., of victim as well as of accused. Such a investigation is also necessary for fair trial as held in the case of Babubhai Vs. State of Gujarat and others; (2010) 12 SCC 8254 . Their Lordships have ruled that fair investigation is a right of an accused protected under Articles 20 and 21 of the Constitution of India because tainted and biased investigation result into prejudice and harm to the parties which cannot be permitted to continue.
The second option with the Magistrate is to accept the police report and drop the proceedings against the accused by accepting the final report.
The third option is with the Magistrate to treat the protest petition as complaint and proceed under Section 200 and 202Cr.P.C.
In all the three options the learned Magistrate has to assign the reasons for exercising the discretion to proceed in any one option out of aforesaid three options.
As this fact is not in dispute that both these cases are arising out of same incident and based on similar material, they cannot be allowed to continue separately and if allowed to do so the petitioners will subject to double jeopardy which is not permissible under law. In such situation, the court should take care and both cases should be consolidated for trial. It is also settled principles of law that two FIRs cannot be lodged in respect of the same incident as held by the Apex Court in Babu Bhai Vs. State of Gujrat and others 2010 (12) SCC 8254.
In view of the discussions made herein above, the orders impugned cannot be allowed to sustain. However, in the facts and circumstances of the case, it would be appropriate that certain directions be issued to the learned Magistrate in these matters after setting aside the orders impugned in both cases, which runs as follows:-
1.That the learned Magistrate will pass a fresh order in light of the observations made in this judgment on the final report submitted by the police in both these cases.
2.If the learned Magistrate differs with the opinion expressed by the police officer and is also of the opinion that sufficient material is available in the police report filed in the form of final report to proceed against the petitioners, he must assign the reason for disagreement with the opinion of the police officer on the basis of material available in the police diary giving brief reference of the material considered by him.
3.That if the learned Magistrate is of the opinion that material is not sufficient in the case diary to proceed against the petitioners, he may either to accept the report or may pass order for further investigation or to proceed under Chapter XV of Cr.P.C. in light of the protest petition filed by the opposite party after assigning the reasons for doing so.
4.That in any case, if the learned Magistrate is of the opinion that final report should not be accepted, he will pass order of consolidating both cases and to proceed thereafter in accordance with law .
In view of above, both petitions are allowed. Impugned orders are hereby set aside. The cases are remanded back with aforesaid directions.
Interim orders granted in both petitions are discharged.
Order Dated: 13.11.2014 GSY