Objection filed by learned AGA is taken on record.
Heard learned counsel for the appellant as well as learned AGA for the State and perused the record.
This Criminal Appeal under Section 14-A (1) of SC/ST Act 1989 has been filed by the appellant -Priya Singh @ Gudiya against the cognizance order dated 6.4.2016 as well as bailable warrant dated 30.3.2019 passed by Special Judge SC/ST Act, Lucknow in Special Trial No. 304/2017 " State Vs. Vinay Kumar Singh and others" relating to First Information Report Case No. 196 of 2014, under Sections 323, 504, 506 IPC & Section 3(1) (X) SC/ST Act, relating to Police Station Aashiyana, District Lucknow, whereby the applicant has been summoned to face trial.
Brief facts giving rise to this appeal are that an application was moved by the victim herself addressed to the District Magistrate, Lucknow alleging that on 3.5.2014 at about 3.00 A.M. in the morning when her husband and Dewar were away in connection with their employment, accused persons after entering her house started abusing and also addressed her with castiest remarks in public view. Accused Vinay Singh also addressed her with abusive language and outraged her modesty by tearing apart her clothes. It is further stated that all accused persons physically assaulted her and her sister. On a hue and cry made by her, her neighbour, namely, Neeraj, Pushpa and mother of Soni came at the scene and saved her.The accused personswere continuously abusing and addressing the informant with castiest remarks and filthy abuses and also threatened them of their lives.
It is also stated in the FIR that despite the incident had been reported earlier to different Authorities but no FIR in the matter was lodged. On the basis of application mentioned herein-above an FIR was registered at Case Crime No.196 of 2014, under Sections 323, 504, 506 IPC and 3(1) (X) SC/ST Act against the accused persons at Police Station Aashiyana, District Lucknow and after investigation a charge sheet was field against the accused Vinay Kumar Singh, Priya and Uma Singh and the Magistrate, after taking into consideration the material placed with the charge sheet, took cognizance of the offence and summoned the accused persons to face trial under Section 354-A, 323, 504, 506 IPC & Section 3(1) (X) SC/ST Act.
The above order of summoning has been challenged by the appellant Priya Singh @ Gudiya in this appeal.
Learned counsel for the appellant while pressing the appeal submits that the court below while summoning the appellant has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial.. It is further submitted that the court below has not taken into consideration the material placed before the trial court along with charge sheet and therefore the trial court has materially erred in summoning the appellant.
It is next sub mitted that no offence as described in the FIR or in the statement of the witnesses recorded during the course of investigation has taken place and the whole story as narrated in the FIR as well as in the statement of the witnesses has been cooked and manufactured, therefore the court below has materially erred in summoning the appellant, as such the order is liable to be set aside.
Learned AGA, however, opposes the contention of learned counsel for the appellant on the ground that the court below keeping in view the charge sheet and material submitted therewith, after applying judicial mind and finding sufficient material on record, summoned the appellant along with other co-accused persons to face trial and therefore there is nothing illegal so far as the order of summoning passed by the court below.
Having heard learned counsel for the parties and having perused the record, it is apparent that the contents of the FIR so far as the offences, wherein the appellant has been summoned to face trial, is concerned, find corroboration with medical evidence available on record as there is an injury report on record pertaining to Ms. Nankai Devi wherein five injuries have been shown to have been sustained by her. Perusal of these injuries shows that these injuries may not be self inflicted.All submissions put forth by learned counsel for the appellant before this Court are pertaining to factual aspect of the matter and can only be considered by a criminal court in a full-fledged criminal trial, and it is not a stage where minute scrutiny of the evidence should have been made by the Court below.
At this juncture it is fruitful to have a look so far as the law pertaining to summoning of the accused persons, by taking cognizance on a police report filed under section 173 of the CrPC , is concerned and the perusal of the case law mentioned herein below would clearly reveal that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the material collected by the investigating officer results in sufficient grounds to proceed further and would constitute violation of law so as to call a person to appear before the criminal court to face trial. This discretion puts a responsibility on the magistrate concerned to act judiciously keeping in view the facts of the particular case as well as the Law on the subject.
In AIR 2012 SUPREME COURT 1747, Bhushan Kumar and Anr v. State (NCT of Delhi) and Anr "the Apex Court has held that "10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued."
In AIR 2015 SUPREME COURT 923, Sunil Bharti Mittal v. Central Bureau of Investigation (Three Judges Bench) Hon,ble Apex Court held as under:
" 47. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself??.."
The provisions relating to the power of the police to investigate into offences and the procedure to be adopted by them are to be found in Chapter XII which falls under the heading 'Information to the Police and their powers to investigate'. Under Section 156 (1) of the Code an officer-in-charge of a police station may investigate any cognizable offence without any order of the Magistrate ,however this is not a case pertaining to non-cognizable cases, wherein without an order from a Magistrate specified in Section 155(2) no investigation can be made. Any Magistrate empowered under Section 190 may order, under Section 156 (3) , before taking cognizance of offence, the police to investigate into a cognizable case. Section 157 prescribes the procedure to be followed by the officer-in-charge of a police-station when he has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate and in such an eventuality he will forthwith send a report of the same to a Magistrate, empowered to take cognizance of such offence upon a police report and proceed in person, or depute any one of his subordinate officers to investigate the case. No need to say that if there is sufficient material/ evidence against accused person(s) arrest of the offender may be made.Where the S.H.O. of a police station take a decision not to investigate an cognizable offence the Magistrate even then may direct the police to make an investigation under section 156(3) of the CrPC. Above mentioned provisions clearly demonstrate that scheme of the Code is that an investigation should take place into a cognizable offence and the investigation must be carried out and completed without delay. The investigation part is however left in entirety to the police and there is no scope of interference with the same.
Now come the next stage where after investigation the officer in charge of the police-station may find sufficient material against accused person(s) or may also not find sufficient material as the case may be. If sufficient evidence or reasonable grounds to justify the forwarding of the accused to a Magistrate have been found in investigation, such officer will forward the accused to a Magistrate empowered to take cognizance of the offence, under Section 170 of the Code. On the other side if it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground to forward the accused to a Magistrate,he by virtue of Section 169 of the Code will release the accused, if in custody, on his executing a bond, to appear, if and when required, before a Magistrate empowered to take cognizance of the offence. The aforesaid provisions however make it very clear that in either eventuality, after completion of the investigation, the officer in charge of the police station will have to submit a report under Section 173, to the Magistrate .It is worthwhile to recall here that nowhere in the Code expression 'charge-sheet' or 'final report' has been used and Section 173 of the Code talks only about a report to be submitted by the police after completion of the investigation.
In Darshan Singh Ram Kishan v. State of Maharashtra MANU/SC/0089/1971 : (1971) 2 SCC 654, it was held that the process of taking cognizance does not involve any formal action, but it occurs as soon as the Magistrate applies his mind to the allegations and thereafter takes judicial notice of the offence "8. As provided by Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report."
In Kishun Singh and Ors. v. State of Bihar MANU/SC/0460/1993 : (1993) 2 SCC 16, this Court reiterated the position that where, on application of mind, the allegations in the complaint, according to the Magistrate, if proved, would constitute an offence, cognizance is to be is taken of the offence so as to proceed further against the accused. To quote:
"7.... Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding Under Sections 200/204 of the Code.?"
In State of W.B. and Anr. v. Mohd. Khalid and Ors. MANU/SC/0154/1995 : (1995) 1 SCC 684, it has been held by this Court that while exercising the power to take cognizance, a Magistrate has to see whether there is any basis for initiating judicial proceedings. At paragraph-43, it has been held as follows:
"43....Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons."
In Jagdish Ram v. State of Rajasthan and Anr.MANU/SC/0196/2004 : (2004) 4 SCC 432, the law was restated,in the following way, holding that at the stage of issuing process to the accused, the Magistrate is not required to record reasons. However, he has to be satisfied that there is sufficient ground for proceeding and such satisfaction is not whether there is sufficient ground for conviction :-
"10.... The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."
In S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors. MANU/SC/7011/2008 : (2008) 2 SCC 492, it was held in the following paragraphs that taking cognizance has no esoteric or mystic significance in criminal law and it connotes that a judicial notice is taken of an offence, after application of mind :-
"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.
20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance."
In M/s. India Carat Pvt. Ltd. Vs. State of Karnataka MANU/SC/0349/1989 : 1989(26) ACC 280 (SC), Supreme Court has observed in para 16 of judgment that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to 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 of making out a case against accused. Magistrate can ignore conclusion arrived at by Investigating Officer, independently applying his mind to the facts emergent from investigation and can take cognizance of case or in alternative he can take cognizance of original complaint and examine complainant and his witness and thereafter issue process to accused, if he is of opinion that the case should proceed. Following observations of Court fortify what is observed above:
"16. 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, in exercise of 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 Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.
17. The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). It has been held in Tula Ram and others Vs. Kishore Singh MANU/SC/0163/1977 : 1978(1) SCR 615 that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with."
Supreme Court in Tula Ram Vs. Kishore Singh MANU/SC/0163/1977 : AIR 1977 SC 2401 said that Magistrate can ignore a final report submitted by Police including the conclusion and take cognizance of case under Section 190(1)(b) on the basis of material collected during investigation and issue process, or in the alternative, he may take cognizance of original complaint, examine the complainant and his witnesses and thereafter issue process to accused, if he is of opinion that case should be proceeded with.Therefore even in the cases where the charge sheet has not been submitted and the final report is submitted, then also the Magistrate can at the time of taking cognizance entirely differ and disagree with the conclusion of the Investigating Officer. He can reject the final report as such and may summon all the accused persons named in the F.I.R if there is sufficient material available in the case diary against them to constitute the alleged offences whatever they are.Similar view has been expressed In Abhinandan Jha & others Vs. Dinesh Mishra, 1968 AIR 117(1962 SCR(3) 668),H.S. Bains, Director Small Saving-Cum-Deputy Secretary Finance Punjab,Chandigarh Vs. State(Union Territory of Chandigarh) AIR 1980 SC 1883, Gangadhar Janardan Mhatre vs. State of Maharashtra and others MANU/SC/0830/2004 : 2004 (7) SCC 768, and Pakhandu and others Vs. State of U.P. and others( Allahabad High Court) 2001 Vol.43 ACC 1096.
In Minu Kumari and another Vs. State of Bihar and others MANU/SC/8098/2006 : 2006 (4) SCC 359, Supreme Court said as under:
"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 has again 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 for 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 of his powers under Section 190(1)(b) and direct the issue of process to the accused."
In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294, Hon?ble Supreme Court held as under :
"Where the magistrate decides to take cognizance under section 190(1)(b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under section 190(1)(b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e., protest petition and affidavits while taking cognizance under section 190(1)(b) Cr.P.C., the impugned order is vitiated."
In the case of Nupur Talwar vs C.B.I. reported in 2013 AIR SCW 369, the Hon'ble Supreme Court has held as under :-
"10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued."
Honble Supreme Court in a recent decision State of Gujrat Vs Afroz Mohammed Hasanfatta reported in 2019 SCC online SC 132 while considering the obligation of magistrate at the time of issuance of summons to the accused persons while taking cognizance of offences on a police report submitted under section 173 of the Code Of Criminal procedure, formulated following point and answered it as under :-
"While taking cognizance of an offence under Section 190(1) (b) Cr.P.C., whether the court has to record reasons for its satisfaction of sufficient grounds for issuance of summons:-
13. The charge sheet was filed in Criminal Case No.47715/2014 on 18.08.2014 against the accused persons namely Sunil Agrawal and Ratan Agrawal. In the first charge sheet, the respondent-Afroz Mohammad Hasanfatta (Afroz Hasanfatta) was referred to as a suspect. In the second supplementary charge sheet filed on 15.11.2014 in Criminal Case No.62851/2014, the respondent-Afroz is arraigned as accused No.1 and Amit @ Bilal Haroon Gilani as accused No.2. In the second supplementary charge sheet, prosecution relies upon the statement of witnesses as well as on certain bank transactions as to flow of money into the account of the respondent-Afroz Hasanfatta and his Company-Nile Trading Corporation. The order of taking cognizance of the second supplementary charge sheet and issuance of summons to the respondent-Afroz Hasanfatta reads as under:- "I take in consideration charge sheet/complaint for the offence of Section 420, 465, 467, 468 IPC etc. Summons to be issued against the accused."
14. The first and foremost contention of the respondent-accused is that summoning an accused is a serious matter and the summoning order must reflect that the Magistrate has applied his mind to the facts of the case and the law applicable thereto and in the present case, the order for issue of process without recording reasons was rightly set aside by the High Court. In support of their contention that the summoning order must record reasons showing application of mind, reliance was placed upon Pepsi Foods Ltd. The second limb of submission of the learned senior counsel appearing for the respondent-accused is that there has to be an order indicating the application of mind by the Magistrate as to the satisfaction that there are sufficient grounds to proceed against the accused irrespective of the fact that whether it is a charge sheet by the police or a private complaint.
15. It is well-settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well-settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused. Reliance was placed upon Bhushan Kumar and another v. State (NCT of Delhi) and another (2012) 5 SCC 424 wherein it was held as under:-
"11. In Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492 (SCC p. 499, para 19) the expression "cognizance" was explained by this Court as "it merely means 'become aware of' and when used with reference to a court or a Judge, it connotes 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.
12. A "summons" is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court.
13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued." [underlining added]
16. After referring to Bhushan Kumar, Videocon International Limited and other decisions, in Mehmood Ul Rehman v. Khazir Mohammad Tunda and others (2015) 12 SCC 420, it was held as under:-
"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others (1998) 5 SCC 749 to set in motion the process of criminal law against a person is a serious matter."
The above observations made in para (20) is in the context of taking cognizance of a complaint. As per definition under Section 2(d) Cr.P.C., complaint does not include a police report.
17. The learned senior counsel appearing for the respondent accused relied upon various judgments to contend that while taking cognizance, the court has to record the reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the accused for that offence. The learned senior counsel appearing on behalf of the respondent-accused relied upon judgments in the case of Pepsi Foods Ltd. and Mehmood Ul Rehman to contend that while taking cognizance, the Court has to record reasons that prima facie case is made out and that there are sufficient grounds for proceeding against the 12 accused for that offence. On the facts and circumstances of those cases, this Court held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. However, what needs to be understood is that those cases relate to issuance of process taking cognizance of offences based on the complaint. Be it noted that as per the definition under Section 2(d) Cr.P.C, 'complaint' does not include a police report. Those cases do not relate to taking of cognizance upon a police report under Section 190(1)(b) Cr.P.C. Those cases relate to taking cognizance of offences based on the complaint. In fact, it was also observed in the case of Mehmood Ul Rehman that "under Section 190(1)(b) Cr.P.C., the Magistrate has the advantage of a police report; but under Section 190(1)(a) Cr.P.C., he has only a complaint before him. Hence, the code specifies that "a complaint of facts which constitutes an offence".
18. Section 190(1)(a) Cr.P.C. provides for cognizance of complaint. Section 190(1)(b) Cr.P.C. deals with taking cognizance of any offence on the basis of police report under Section 173(2) Cr.P.C. Complaint is defined in Section 2(d) Cr.P.C. which reads as under:-
"2. Definitions. ??. (d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has 13 committed an offence, but does not include a police report."
The procedure for taking cognizance upon complaint has been provided under Chapter XV ? Complaints to Magistrates under Sections 200 to 203 Cr.P.C. A complaint filed before the Magistrate may be dismissed under Section 203 Cr.P.C. if the Magistrate is of the opinion that there is no sufficient ground for proceeding and in every such case, he shall briefly record his reasons for so doing. If a complaint is not dismissed under Section 203 Cr.P.C., the Magistrate issues process under Section 204 Cr.P.C. Section 204 Cr.P.C. is in a separate chapter i.e. Chapter XVI ? Commencement of Proceedings before Magistrates. A combined reading of Section 203 and Section 204 Cr.P.C. shows that for dismissal of a complaint, reasons should be recorded. The procedure for trial of warrant cases is provided in Chapter XIX ? Trial of Warrant Cases by the Magistrates. Chapter XIX deals with two types of cases ? A ? Cases instituted on a police report and B ? Cases instituted otherwise than on police report. In the present case, cognizance has been taken on the basis of police report.
19. In a case instituted on a police report, in warrant cases, under Section 239 Cr.P.C., upon considering the police report and the documents filed along with it under Section 173 Cr.P.C., the Magistrate after affording opportunity of hearing to both the accused and the prosecution, shall discharge the accused, if the Magistrate considers the charge against the accused to be groundless and record his reasons for so doing. Then comes Chapter XIX-C ? Conclusion of trial - the Magistrate to rendering final judgment under Section 248 Cr.P.C. considering the various provisions and pointing out three stages of the case. Observing that there is no requirement of recording reasons for issuance of process under Section 204 Cr.P.C., in Raj Kumar Agarwal v. State of U.P. and another 1999 Cr.LJ 4101, Justice B.K. Rathi, the learned Single Judge of the Allahabad High Court held as under:-
"??.As such there are three stages of a case. The first is under Section 204 Cr. P.C. at the time of issue of process, the second is under Section 239 Cr. P.C. before framing of the charge and the third is after recording the entire evidence of the prosecution and the defence. The question is whether the Magistrate is required to scrutinise the evidence at all the three stages and record reasons of his satisfaction. If this view is taken, it will make speedy disposal a dream. In my opinion the consideration of merits and evidence at all the three stages is different. At the stage of issue of process under Section 204 Cr. P.C. detailed enquiry regarding the merit and demerit of the cases is not required. The fact that after investigation of the case, the police has submitted the charge sheet, may be considered as sufficient ground for proceeding at the stage of issue of process under Section 204 Cr. PC., however subject to the condition that at this stage the Magistrate should examine whether the complaint is barred under any law, ??? At the stage of Section 204 Cr. P.C. if the complaint is not found barred under any law, the evidence is not required to be considered nor the reasons are required to be recorded. At the stage of charge under Section 239 or 240 Cr. P.C. the evidence may be considered very briefly, though at that stage also, the Magistrate is not required to meticulously examine and to evaluate the evidence and to record detailed reasons.
8. A bare reading of Sections 203 and 204 Cr.P.C. shows that Section 203 Cr.P.C. requires that reasons should be recorded for the dismissal of the complaint. Contrary to it, there is no such' requirement under Section 204 Cr.P.C. Therefore, the order for issue of process in this case without recording reasons, does not suffer from any illegality." [underlining added] We fully endorse the above view taken by the learned Judge.
20. . In para (21) of Mehmood Ali Rehman, this Court has made a fine distinction between taking cognizance based upon charge sheet filed by the police under Section 190(1)(b) Cr.P.C. and a private complaint under Section 190(1)(a) Cr.P.C. and held as under:-
"21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that "a complaint of facts which constitute such offence". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected."
21 . In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient ground for proceeding?.."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming 16 that the accused has committed an offence?..". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.
22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file."
(Emphasis Mine) Section 190, which deals with taking cognizance of offences by Magistrate, sets out that any Magistrate of the first Class and any Magistrate of the second class specially empowered, as contemplated, may take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence or (b) upon a police report of such facts or upon information received from any person other than the police officer, or (c) upon his own knowledge that such offence had been committed. Instant case is related to section 190 (b) i.e. police report. The word 'may' occurred in section 190 imports the exercise of judicial discretion and the Magistrate receiving the report under Section 173 would have to consider the report and decide judicially whether or not to take cognizance of the offence and as discussed earlier where the report states that, according to the police, no offence appears to have been committed the Magistrate has option of adopting one of the three courses open to him i.e., (1) he may accept the report and drop the proceeding( in this case he will have to inform victim/ informant ); or (2) he may disagree with the report and take the view that there is sufficient ground for 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).
However, where the police report concludes that an offence appears to have been committed by particular person or persons and in such a case, he may (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding( in this case he will have to inform victim/ informant ), or (3) before taking offence may direct further investigation under Section 156(3) and require the police to make a further report. If after taking into consideration material placed with the 'Charge Sheet' there is sufficient ground for proceeding against the persons named in the Charge Sheet the processes may be issued against them under Section 204 Cr.P.C. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for the conviction. The court is not required to evaluate the evidence and its merits. At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. As propounded by Supreme Court in State of Gujrat Vs Afroz Mohammed Hasanfatta (supra), the fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C. In cases instituted on a police report, the Magistrate is required to pass an order of issuing summons to the accused on the basis of his subjective satisfaction considering the police report and other documents and after satisfying himself that there is sufficient ground for proceeding against the accused.
Coming to the facts of the present case it is apparent that it is alleged in the F.I.R. that on 3.5.2014 at about 8.30 A.M. in the morning when husband and Dewar of the informant were away, accused persons entered her house and started abusing and also addressed her with castiest remarks in public view. The allegations were also with regard to the fact that all accused persons physically assaulted her and her sister and they also outraged their modesty. On a hue and cry made by her many persons came at the scene and saved her. The investigating officer found the allegations partially true in investigation and submitted charge sheet under Sections 323, 504, 506 IP?C and 3(I) (X) SC/ST Act . Contents of the FIR so far as the offences, wherein the appellant has been summoned to face trial, is concerned, find corroboration with medical evidence available on record. There is also an injury report of Smt Nankai Devi wherein five injuries have been shown to have been sustained by her. Keeping in view the aforesaid settled legal position that at the stage of cognizance and summoning, the material or evidence collected during investigation and produced with the Charge Sheet ( Report Under Section 173 Crpc) is to be seen only for the purpose of proceeding further and also that at the stage of summoning meticulous examination of the evidence or material produced with the Report Under Section 173 of the Code is not required and sufficiency of the evidence or material is to be seen only the purpose of proceeding further, I do not find any substance in the appeal. There appears no illegality in the impugned summoning order dated 6.4.2016 of the court below whereby the appellant and other co-accused persons have been summoned to face trial.
In this view of the matter, the appeal is devoid of merit and is dismissed and orders dated 6.4.2016 as well as order dated 30.3.2019 whereby Bailable Warrant were issued, passed by Special Judge SC/ST Act, Lucknow is affirmed.
At this stage it is submitted by Ld. Counsel for the Appellant that Appellant is a lady and it is apprehended that the moment she will surrender before the trial Court she will be sent to prison and disposal of her bail Application may take time. Needless to say that disposal of bail Applications in any case is the prerogative and discretion of the Court concerned and the same can not be circumcised by passing any order in this regard. Suffice is to say that since appellant is willing to participate in the trial, therefore it is directed that in case the appellant appears and surrenders before the court below within 30 days from today and apply for bail, her prayer for bail may be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as approved by Hon'ble Apex Court reported in 2009 (3) ADJ 332 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of 30 days form today or till the surrender of appellants before trial court, whichever is earlier, no coercive steps shall be taken against the appellant in the above mentioned case.
Order Date :- 26.7.2019 Muk