This writ petition has been filed with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 6.6.2011 and 5.8.2011 passed by Chief Judicial Magistrate, Agra (Annexure 14 and 13 to the writ petition) in criminal case no.5910 of 2011 State Vs. Shammi Kohali and others under sections 364, 302, 120-B IPC, P.S. New Agra, District Agra as well as revisional order dated 27.9.2011 passed by Sessions Judge, Agra.
Heard Sri Satish Trivedi, senior advocate assisted by Sri Ajay Kumar Pandey, learned counsel for the petitioner, learned AGA for the State and Sri P.K. Singh and Sri Pankaj Dwivedi, learned counsel for the complainant.
In brief, the facts of the case are that on 26.2.2010, FIR was lodged by the complainant Rakesh Gupta - respondent no.2 against Smt. Shammi Kohali, Vikas Chhabra, Mohit Bhardwaj and Nitin Kohali stating therein that on 25.2.2010 at 7:00 p.m., son of the first informant named Gaurav Gupta was standing at the gate of his house. The accused Smt. Shammi Kohali, Mohit Bhardwaj and Vikas Chhabra took him away by a car on the pretext that they had to talk to him. When Gaurav did not return for a considerable time, the first informant started a search. On Mughal Road, Dharamveer and Montu @ Nitin Sharma told him that they had seen Gaurav being taken away in a Scorpio vehicle by Smt. Shammi Kohali, Nitin Kohali, Mohit Bhardwaj and Vikas Chhabra. On 26.2.2010, the dead body of Gaurav Gupta was found on Mughal Road and FIR was lodged. There was previous enmity between the parties.
After investigation, the police submitted a charge-sheet on 24.12.2010 against all the four accused for the offences under sections 364, 302 IPC (Annexure 2). Supplementary charge-sheet was also filed against the petitioner for the offence under section 120-B IPC. In February, 2011, the D.I.G., Agra Range directed further investigation by SIS and consequently an application was moved before Chief Judicial Magistrate, Agra for permission to conduct further investigation. The application was disposed of by Chief Judicial Magistrate, Agra by saying that for further investigation, the permission of the Court was not required and if any new fact or circumstances surfaced, it could be brought to the notice of the Court by means of a supplementary police report. During further investigation, the SIS re-interrogated Dharamveer and Montu @ Nitin Sharma, who resiled from their earlier statements and stated that they had not seen the petitioner in the company of the deceased and the investigation was again transferred and ultimately a supplementary report dated 6.7.2011 was filed before the Court stating therein that the offences under sections 364, 302, 120-B IPC are not disclosed against the petitioner Nitin Kohali. In the meantime, Chief Judicial Magistrate, Agra took cognizance of the offence vide order dated 6.6.2011 on the basis of the charge-sheet submitted by the police. The application was moved on behalf of the petitioner stating therein that the supplementary investigation report dated 6.7.2011 amounts to a final report in favour of the petitioner and, therefore, proceedings against him be dropped and in respect of the petitioner, the final report be accepted.
The application was opposed by Assistant Prosecuting Officer on the ground that cognizance against the applicant had already been taken in respect of the offences under sections 364, 302 IPC. Learned Magistrate rejected the application on the grounds that cognizance has already been taken on 6.6.2011 in respect of the offences under sections 364, 302 IPC, no final report has been submitted in favour of the petitioner and the petitioner had not yet surrendered before the Court.
The order taking cognizance dated 6.6.2011 was challenged by the petitioner before learned Sessions Judge, Agra by means of a revision, but the same was dismissed by learned Sessions Judge vide order dated 27.9.2011. Hence, this writ petition.
Sri Trivedi, senior advocate appearing on behalf of the petitioner submits that in the FIR, the petitioner was not alleged to have taken Gaurav Gupta from his house, but this allegation was only against three co-accused. In the FIR, it was mentioned that the witnesses Dharamveer and Montu @ Nitin Sharma told the first informant that they had seen Nitin Kohali driving the car wherein the deceased was being taken. Learned counsel contends that in further investigation, these two witnesses have specifically denied having witnessed the incident and, therefore, there is no material against the petitioner warranting his trial by the Court. The contention is that after further investigation, it was found that the petitioner was innocent and a supplementary report under section 173 (8) Cr.P.C. was filed in his favour and, therefore, it was incumbent on the part of the Magistrate to rely on the final report submitted in favour of the petitioner and he should have been discharged.
Per contra, learned AGA as well as learned counsel for the complainant vehemently controverted the contentions raised by learned counsel for the petitioner and it was submitted that on the charge-sheet submitted against the petitioner, cognizance had already been taken by the Magistrate vide order dated 6.6.2011 and any subsequent police report in favour of the petitioner does not wipe out the charge-sheet. It was further submitted that the case is exclusively triable by the Court of Sessions and the Magistrate has no power to weigh or judge the sufficiency of the evidence or material against the petitioner.
Learned counsel for the petitioner relied upon a decision of the Apex Court in Dharmatma Singh Vs. Harminder Singh & others (2011) 6 SCC 102 wherein the Apex Court held as under :
15.A reading of provisions of sub-section (2) of Section 173, Cr.P.C. would show that as soon as the investigation is completed, the officer in charge of the police station is required to forward the police report to the Magistrate empowered to take cognizance of the offence stating inter alia whether an offence appears to have been committed and if so, by whom. Sub-section (8) of Section 173 further provides that where upon further investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall also forward to the Magistrate a further report regarding such evidence and the provisions of sub-section (2) of Section 173, Cr.P.C., shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). Thus, the report under sub-section (2) of Section 173 after the initial investigation as well as the further report under sub-section (8) of Section 173 after further investigation constitute "police report" and have to be forwarded to the Magistrate empowered to take cognizance of the offence.
16.It will also be clear from Section 190 (b) of the Cr.P.C. that it is the Magistrate, who has the power to take cognizance of any offence upon a "police report" of such facts which constitute an offence. Thus, when a police report is forwarded to the Magistrate either under sub-section (2) or under sub-section (8) of Section 173, Cr.P.C., it is for the Magistrate to apply his mind to the police report and take a view whether to take cognizance of an offence or not to take cognizance of offence against an accused person.
The case, which was being dealt with by the Apex Court, was in respect of the offences under sections 452, 323, 326, 506 read with section 34 IPC and sections 342, 324, 148 IPC and the case was triable by the Magistrate and, therefore, the Apex Court held that it is for the Magistrate to form an opinion whether on the basis of report under section 173 (2) Cr.P.C. and the report under section 173 (8) Cr.P.C., any offence has been committed by the accused or not. But here the situation is different. The offences under sections 364, 302 IPC are not triable by the Magistrate. Before receipt of further investigation report under section 173 (8) Cr.P.C., the Magistrate had already taken cognizance on 6.6.2011 on the basis of earlier charge-sheet submitted by the police and on the basis of supplementary police report, the Magistrate was not empowered to put the clock back or to reconsider his earlier decision taking cognizance.
Once the cognizance was taken by the Magistrate, he had no option but to procure the presence of the accused, furnish copies under section 207 Cr.P.C. and to commit the case to the Court of Sessions for trial. After committal of the case, it is for the Sessions Court to decide as to whether keeping in view the earlier charge-sheet submitted by the police and the subsequent supplementary investigation report under section 173 (8) Cr.P.C. exonerating the petitioner, charge should be framed against the petitioner or he should be discharged. The Magistrate has no such power and, therefore, orders dated 6.6.2011 and 5.8.2011 passed by the Chief Judicial Magistrate, Agra (Annexure 14 and 13 to the writ petition) as well as order dated 27.9.2011 passed by learned Sessions Judge, Agra in criminal revision (Annexure 15 to the writ petition) do not require any interference by this Court. After committal of the case, the petitioner shall be at liberty to raise these points before the trial court and who shall decide after taking both the police reports into consideration as to whether charge should be framed against the petitioner or he should be discharged. At this stage, no ground for exercise of extra ordinary power of the Court under Article 226 of the Constitution of India is made out and the writ petition is liable to be dismissed.
Writ petition is dismissed.
Interim order is hereby vacated.
At appropriate stage, the petitioner shall be at liberty to move an application for discharge before the trial court on the basis of grounds raised in the writ petition.
Order date : 14th May, 2012 ss