Smt. Keshkali And 2 Others Vs. State Of U.P. And Another

Allahabad High Court (Single Judge)

APPLICATION U/s 482, 12538 of 2015, Judgment Date: May 14, 2015

HIGH COURT OF JUDICATURE AT ALLAHABAD 

A.F.R. 
Court No. - 43 

Appl. u/S 482 No. -12538/2015 
Applicant :- Smt. Keshkali and others 
Opposite Party :- State of U.P. and Ors 
Counsel for Applicant :- Dharmendra Singhal 
I.K. Chaturvedi 
Counsel for Opposite Party :- Govt. Advocate 

Hon'ble Pankaj Naqvi,J. 

Heard Sri Dharmendra Singhal/Sri I.K. Chaturvedi, learned counsel's for applicants and Sri Vimlendu Tripathi, learned A.G.A. 

This application under Section 482 Cr.P.C. has been preferred against the order dated 19.9.2013, passed by the Chief Judicial Magistrate, summoning the applicants on a protest under Sections 147/302/504/506 IPC and the order dated 16.4.2015, passed by the Addl. Sessions Judge (F.T.C.), Jhansi, rejecting a revision preferred therefrom. 

1. An FIR came to be lodged on 19.7.2012 against the applicants and other accused persons under Sections 147/148/149/302/504/506/34 IPC. After investigation, police report was submitted against three co-accused, i.e., non-applicants on 29.9.2012. The learned Magistrate on 20.10.2012 took cognizance of the offence. O.P. No.2/informant filed a protest before the Magistrate on 3.12.2012 for summoning the applicants, which came to be dismissed on 18.1.2013 on the ground that cognizance has already been taken on 20.10.2012, thus there is no justification to summon the applicants at this stage. The order dated 18.1.2013 was challenged in Criminal Revision No.35/2013, which came to be allowed on 30.8.2013, whereby order of the learned Magistrate dated 18.1.2013 was set aside and he was directed to pass fresh orders. Pursuant thereto, the learned Magistrate on 19.9.2013, summoned the applicants under the aforesaid offences, which has been maintained in Criminal Revision No.262/2013 under order dated 16.4.2015. 

2. Sri Singhal, learned counsel for applicants broadly made two submissions. He first contended that once upon submission of police report, the learned Magistrate took cognizance on 20.10.2012 then in the absence of any challenge to cognizance, it was not open for the revisional court under order dated 16.4.2015 to sit in review of the order dated 20.10.2012 and summon the applicants. He also submits that the power to summon applicants who were not charge-sheeted, could be exercised only after committal, by the trial court either under Section 193 or after evidence is led at the stage of Section 319 of the Code. 

3. Learned A.G.A. while refuting the submissions, contends that cognizance and summoning are two different facets of an inquiry. He submits that once cognizance of the offence was taken by the Magistrate, then a revisional court, being a superior court, could always direct the Magistrate on a protest to summon the applicants on available materials under Section 204 of the Code. He also submits that in the absence of any notice on the part of the Investigating Officer under Section 173(2)(ii) Cr.P.C to the informant that he proposes to file a final report against the applicants, and also in the absence of any notice by the court concerned on the final report, the only remedy available for the informant/O.P. No.2, was to file an application for summoning the applicants on available materials, then no objection could be taken to such summoning. He relies on the judgments of the Apex Court in the cases of Swil: A. Sasikanth: J. Rajmohan Pillai v. State of NCT of Delhi: State of Delhi: Union of India, 2001 AIR (SC) 2747 and that of Dharam Pal and others v. State of Haryana and another, 2014 (3) SCC 306. 

4. In order to examine the aforesaid issue, it would be relevant to quote the relevant part of Section 173 Cr.P.C. 
173-(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- 
(a) the names of the parties; 
(b) the nature of the information; 
(c) the names of the persons who appear to be acquainted with the circumstances of the case; 
(d) whether any offence appears to have been committed and, if so, by whom; 
(e) whether the accused has been arrested; 
(f) whether he has been released on his bond and, if so, whether with or without sureties; 
(g) whether he has been forwarded in custody under section 170. 
(h) .............. 
(ii)The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. 

5. A perusal of aforesaid provision would indicate that upon completion of investigation of a case, the Officer In-charge of the police station shall forward to a Magistrate, who is empowered to take cognizance of the offence on a police report, a report in respect of above particulars. The stage which is now to be set in motion is Chapter XIV of the Code, i.e., Section 190 in particular which reads as under:- 

190-Cognizance of offences by Magistrates: 
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-Section (2), may take cognizance of any offence- 
(a) upon receiving a complaint of facts which constitute such offence; 
(b) upon a police report of such facts; 
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 
(2)The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-Section (1) of such offences as are within his competence to inquire into or try. 

6. A perusal of above would manifest that a police report is one of the three sources for a Magistrate to take cognizance of any offence under Section 190(1)(b) of the Code. The word "police report" has been defined under Section 2(r) of the Code to mean a report forwarded by a police officer to the Magistrate under sub-section (ii) of Section 173 Cr.P.C. The police report either culminates in the submission of a charge-sheet indicating that after collection of materials by the Investigating Officer, a prima facie case for commission of an offence is made out against the named individuals whose particulars are mentioned in column-3 of the charge-sheet or a final report in respect of such persons, who after investigation are not found to be involved in the commission of an offence and their names are shown in column-2 of the charge-sheet. 

7. Once a police report/charge-sheet is submitted, it is incumbent on the part of the Magistrate to take cognizance of the offence on materials forming part of the police report/charge-sheet and not of the offender as to whether there are sufficient grounds for proceeding or not under Section 204 Cr.P.C. This completes the stage in so far the charge-sheeted accused are concerned. 

8. However, the Magistrates are faced with a situation when a police report / final report is submitted, not implicating named individuals in the involvement of commission of offence. What are the probable options before the Magistrate in such an eventuality, is no longer open to debate, as the issue seems to have been settled way back in the case of Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, Hareram Satpathy v. Tikaram Agarwala and others, 1978(4) SCC 58 and Nagawwe v. Veeranna Shivalingappa Konjalgi, 1976 (3) SCC 736, wherein the Apex Court held that once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence, it is his duty to ascertain who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police, some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceedings initiated by his taking cognizance of an offence. 

9. The Apex Court also in the case of M/s India Carat Pvt. Ltd. v. State of Karnataka and another, 1989(2) SCC 132 held as under:- 
13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200. After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203. On the other hand if in his opinion there is sufficient ground for proceeding he may issue process under Section 204. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and issue process straightaway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or un-earthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued. 

10. Thus, from the aforesaid discussion 4 options can be culled out which a Magistrate can take recourse to in the event a final report is filed before him, (i) he may agree with the conclusions of the police report, accept the same, but before doing so, he has to put the informant to a notice, (ii) he may straightaway take cognizance under Section 190(1)(b) of the Code and issue process under Section 204 Cr.P.C., if he is satisfied that there are adequate materials to summon the accused who has been let off on a police report, irrespective of the conclusions drawn by the Investigating Officer; (iii) he may order further investigation under Section 173(8), (iv) he may take cognizance under Section 190(1)(a) upon an original complaint or the protest as the case may be, treating the same to be a complaint under Section 200 Cr.P.C and proceed thereafter as a complaint case. 

11. The above view has also been approved by the Apex Court in a recent Constitution Bench judgment of Dharam Pal (supra), wherein the following issues were framed for consideration of the Constitution Bench: 
7. The questions which require the consideration of the Constitution Bench are as follows: 
7.1 Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session? 
7.2 If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report? 
7.3 Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure? 
7.4 Can the Session Judge issue summons under Section 193 Code of Criminal Procedure as a Court of original jurisdiction? 
7.5 Upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto? 
7.6 Was Ranjit Singh's case (supra), which set aside the decision in Kishun Singh's case(supra), rightly decided or not? 
12. The issue relevant for the purpose of instant case is contained in para 7(ii). The Apex Court held as under:- 
32. Section 190, which has been extracted hereinbefore, empowers any Magistrate of the First Class or the Second Class specially empowered in this behalf under Sub-section (2) to take cognizance of any offence in three contingencies. In the instant case, we are concerned with the provisions of Section 190(1)(b) since a police report has been submitted by the police, under Section 173(3) of the Code sending up one accused for trial, while including the names of the other accused in column 2 of the report. The facts as revealed from the materials on record and the oral submissions made on behalf of the respective parties indicate that, on receiving such police report, the learned Magistrate did not straight away proceed to commit the case to the Court of Session but, on an objection taken on behalf of the complainant, treated as a protest petition, issued summons to those accused who had been named in column 2 of the charge-sheet, without holding any further inquiry, as contemplated under Sections 190, 200 or even 202 of the Code, but proceeded to issue summons on the basis of the police report only. The learned Magistrate did not accept the Final Report filed by the Investigating Officer against the accused, whose names were included in column 2, as he was convinced that a prima facie case to go to trial had been made out against them as well, and issued summons to them to stand trial with the other accused, Nafe Singh. The questions which have arisen from the procedure adopted by the learned Magistrate in summoning the Appellants to stand trial along with Nafe Singh, have already been set out hereinbefore in paragraph 4 of this judgment. 

33. As far as the first question is concerned, we are unable to accept the submissions made by Mr. Chahar and Mr. Dave that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate had no other function, but to commit the case for trial to the Court of Session, which could only resort to Section 319 of the Code to array any other person as accused in the trial. In other words, according to Mr. Dave, there could be no intermediary stage between taking of cognizance under Section 190(1)(b) and Section 204 of the Code issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any control over the persons named in column 2 of the police report nor the Session Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event, the Session Judge ultimately found material against the persons named in column 2 of the police report, the trial would have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same. 

34. The view expressed in Kishun Singh's case, in our view, is more acceptable since, as has been held by this Court in the cases referred to hereinbefore, the Magistrate has ample powers to disagree with the Final Report that may be filed by the police authorities under Section 173(3) of the Code and to proceed against the accused persons dehors the police report, which power the Session Court does not have till the Section 319 stage is reached. The upshot of the said situation would be that even though the Magistrate had powers to disagree with the police report filed under Section 173(3) of the Code, he was helpless in taking recourse to such a course of action while the Session Judge was also unable to proceed against any person, other than the accused sent up for trial, till such time evidence had been adduced and the witnesses had been cross-examined on behalf of the accused. 

35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Code of Criminal Procedure. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column No. 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter. 

13. The upshot of the aforesaid dicta laid by the Apex Court in the case of Dharam Pal (supra) is that if after submission of a police report under Section 173(2) of the Code, the Magistrate on available materials, is satisfied that there are sufficient materials to proceed against the accused persons mentioned in Column-2 of the report, then no exception can be taken to such summoning merely on the ground that the same must await the stage subsequent to commital at the stage of Section 193 or 319 of the Code. 

14. In the case in hand, the FIR was lodged against six persons, whereas a police report was submitted only against three persons on 29.9.2012, thus the learned Magistrate on 20.10.2012 took cognizance of the offence. It is not disputed that neither the Investigating Officer under Section 173(2) of the Code confronted the contents of the police report to the informant of the case nor did the court. Thus, the applicants had no option but to file an application before the Magistrate on 3.12.2012 nomenclatured as a protest alleging that there are adequate materials in the police report warranting summoning of the present applicants too on materials forming part of the police report. The learned Magistrate rejected the said application on 18.1.2013, which was set aside on a revision preferred by the informant/O.P. No.2 and pursuant thereto the learned Magistrate proceeded to summon the present applicants too. The present summoning is under an order of the superior court dated 30.8.2013 on the premise that there was no legal impediment for the learned Magistrate to proceed against the applicants, provided adequate materials were there in the police report so as to proceed under Section 190(1)(b) of the Code as held in a series of the aforesaid judgments. Thus, it is fallacious to contend that in the absence of any challenge to an order of cognizance dated 20.10.2012, the applicants could not be summoned under the garb of the order of the revisional court dated 16.4.2015 as it would have amounted to review of order of cognizance dated 20.10.2012. Cognizance and summoning it is reiterated, are two different facets at the stage of inquiry. 

No exception could be taken to the above approach which has the sanction of law. 

The application under Section 482 Cr.P.C. is dismissed.