Court No. - 71
Case :- APPLICATION U/S 482 No. - 1976 of 2019
Applicant :- Ram Sewak And 4 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Surendra Tiwari
Counsel for Opposite Party :- G.A.,Sriprakashdwevedi
Hon'ble Siddharth,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The applicants have approached this Court against the order dated 21.12.2018 passed by Session Judge, Mirzapur, in Criminal Revision No. 79 of 2018 and also the order dated 22.6.2018 passed by Chief Judicial Magistrate, Mirzapur on the protest petition registered as Misc. Case No. 175 of 2018 (Monu Yadav Vs. Baccha Yadav and others) against final report No. 15 of 2018 arising out Case Crime No. 05 of 2018, under Section 302, 201 and 147 IPC, Police Station Chunar, District Mirzapur.
By the aforesaid orders, the court below has summoned the applicants for facing trial on the protest petition of the opposite party No.2. It has been submitted that in the protest petition itself, it was mentioned that the statement of the informant was not recorded by the Investigating Officer and therefore, the case should be treated as complaint case and thereafter, proceeded by the court below. However, court below by the impugned order has taken cognizance of the offence and has proceeded to summon the applicants for facing trial under Sections 302, 201 and 147 IPC. It has been stated that the court below has not recorded any reasons nor considered the statements of the witnesses recorded by the Investigating Officer for following any prima facie opinion, whether conviction of the applicants is possible on the basis of the material collected by the Investigating Officer or not. It has further been submitted that 6 out of 10 persons against, whom final report was submitted, have been summoned by the trial court.
Learned counsel for the applicants has relied upon the following judgements in support of his arguments:-
1. Fakhruddin Ahmad Vs. State of Uttaranchal and
another, (2008) 17 SCC 157 (Paragraph No. 17)
"Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."
2. Pakhando and others Vs. State of U.P. and another, 2001 (43) ACC 1096, (Paragraph No. 16)
"Where the Magistrate decides to take cognizance of the case under Section 190(1)(b) of the Code ignoring the conclusions arrived at by the the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code, and consequently the proviso of Section 202 (2) Cr.P.C. will have no application. It would however be relevant to mention that for forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190 (1) (a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under Section 200."
3. State of Gujarat Vs. Girish Radhakrishnan Varde, (2014) 3 SCC 659 (Paragraph No. 14)
"13. But if a case is registered by the police based on the FIR registered at the Police Station under Section 154 Cr.P.C. and not by way of a complaint under Section 190 (a) of the Cr.P.C. before the magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the chargesheet unless of course a complaint before the magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the chargesheet, the matter goes to the magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the magistrate cannot exclude or include any section into the chargesheet after investigation has been completed and chargesheet has been submitted by the police."
The Apex Court has held that the Magistrate is required to apply his mind to the accusations and after forming prima facie opinion whether the offence alleged against the accused is made or not, Magistrate can only be taken cognizance against them.
Learned counsel for the opposite party No.2 has relied upon the judgement of Apex Court in the case of Dr. Mrs. Nupur Talwar Vs. C.B.I. Delhi and another, Special Leave to Appeal (Crl.) No. 2982 of 2011, wherein the Apex Court has relied upon in paragraph No. 19 that the Magistrate is required to exercise sound judicial discretion and apply its mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the Investigating Officer and he is competent to exercise his discretion irrespective of the views expressed by the Police in its report and may prima facie find out whether an offence has been made out or not. It has been submitted that no reasons are required to be given.
After considering the rival submissions, it is clear that for exercising the power under Section 190 (1) (b) Cr.P.C., the Magistrate is required to apply his mind to the material collected by the Investigating Officer. He is required to see whether the material collected by the Investigating Officer, would be sufficient for recording conviction of the accused. The prima facie consideration does not means mere mentioning of the number of the witnesses' statements, which have been collected by the Investigating Officer, and mentioning the names of the witnesses. What the witnesses have stated in the statement and whether their statements would be sufficient for finally convicting the accused is the requirement of law. The Apex Court in the cases of Fakhruddin Ahmad Vs. State of Uttaranchal and another, Pakhando and others Vs. State of U.P. and another and State of Gujarat Vs. Girish Radhakrishnan Varde (supra) has clarified the legal position.
In view of the above, the aforesaid orders are hereby quashed.
This application is allowed. It is open for the court below to pass a fresh order in accordance with law within the period of two months.
Order Date :- 22.1.2019 Ruchi Agrahari