Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Report 173 (2) By IO Mere Opinion And Magistrate No Bound By Opinion. He Has To Apply Mind To Facts Hearing Must To Informant If FR To Be Accepted.
JUDGEMENT TITLE : Prakash Vs. State Of U.P. & Others On 10/09/2008 By Allahabad High Court
CASE NO : CRIMINAL MISC. WRIT PETITION NO. 16078 OF 2008
CORAM : Hon'ble Imtiyaz Murtaza,J. And Hon'ble Raj Mani Chauhan,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 44

Criminal Misc. Writ Petition No. 16078 Of 2008

Prakash...................................V..................State Of U.P. And Others.


Hon. Imtiyaz Murtaza, J.
Hon. R.M.Chauhan, J.


The Relief Claimed In This Petition Is For Issuing A Writ Direction Or Order In The Nature Of Mandamus For Transferring The Investigation To Another Investigating Officer To Investigate The Case In Case Crime No. 556 Of 2008 Under Section 147, 148, 149, 302, 307, 504, 506 IPC And Section 7 Of The Criminal Law Amendment Act P.S.Kosi Kalan District Mathura Studded With A Further Writ Direction Or Order In The Nature Of Mandamus Commanding The Respondent No. 2 To Decide The Representation Of The Petitioner.

An Abridged Version Of The Prosecution Case May Be Set Out And It Is That On The Day Of Occurrence I.e. 29.7.2008, The Accused Persons At About 6 A.m Raided The House Of The Complainant At About 6 A.m Variously Armed With Weapons Alleging That The Complainant's Side Was Involved In Cutting The Trees From Their Field And Started Firing Indiscriminately And In The Firing Three Persons Sustained Fire Arm Injuries. The Further Allegation Is That Omi Brother Of The Complainant Succumbed To Fire Arm Injuries Instantaneously. The Report Of The Occurrence Was Lodged At P.S.Kosi The Same Day.

The Main Brunt Of The Argument In Seeking Change Of Investigating Officer Is That The Investigating Officer Has Not Properly Conducted The Investigation Inasmuch As He Did Not Record The Statement Of The Informant And The Witnesses Under Section 161 Cr.P.C And Submitted Charge Sheet Against Other Accused Persons Nominated In The F.I.R. Except Ram Prasad In Whose Case, Final Report Has Been Submitted By The Investigating Officer On The Ground That During Investigation, His Involvement In The Crime Was Found False On Account Of Pleading Of Alibi. It Is Further Argued That Co-accused Ram Prasad Had Been Named In The F.I.R And He Was Assigned Specific Role In The Commission Of The Offence. It Is Further Submitted That The Petitioner Preferred Application Before The S.S.P And Thereafter, Before The Director General Of Police But The Same Has Not Yielded Any Tangible Action As Yet.


It Would Thus Transpire That The Crux Of The Grievance In Seeking Change Of The Investigating Officer Appears To Be That The Investigating Officer Filed Final Report Against One Of The Nominated Accused And That He (the Investigating Officer) Did Not Record Statements Under Section 161 Of The Informant And Other Witnesses In The Case.

It Would Thus Be Obvious That The The Petitioner After Noticing That The Police Had Not Included The Accused Named In The F.I.R In The Charge Sheet Submitted To The Magistrate, Preferred Application Before The Higher Police Authorities As Envisaged In Section 155 Cr.P.C And When The Same Did Not Elicit Any Response, He Has Knocked The Door Of This Court For Appropriate Remedy. The Core Question To Be Considered Is Whether In The Facts And Circumstances, Any Relief Can Be Granted By This Court Under Article 226 Of The Constitution.

In Connection With The Submission, We Would Like To Advert To Relevant Provisions Of The Cr.P.C. The Procedure Prescribed In The Cr.P.C Is That Report Is Forwarded Under Sub Section (2) Of S. 173 To The Magistrate Who Upon Receipt Of The Report Is Enjoined To Decide Whether He Should Take Cognizance Of The Offence Or Not And In Case, He Decides That There Is No Sufficient Ground For Proceeding Against Some Of The Accused Persons Mentioned In The F.I.R The Magistrate Is Enjoined To Give Notice To The Informant And Provide Him An Opportunity To Be Heard At The Time Of Consideration Of The Report. By This Reckoning, Irrespective Of What The Investigating Officer Has Done, It Would Make No Odds Inasmuch As The Complainant Would Have Ample Opportunity To Canvass The Points Being Advanced Before This Court Before The Magistrate Concerned. It Is Also Worthy Of Mention Here That The Magistrate Has Been Vested With Vast Discretion In This Matter And The Discretion Has To Be Exercised Judicially By Him. It Must Be Noted That It Is Well Settled That If The Magistrate Is Satisfied Prima Facie That There Is Sufficient Materials For Proceeding Against The Accused, He Issues Process Accordingly Under Section 204 Cr.P.C. It Would Also Appear That At The Stage Of Taking Cognizance Of The Offence Provisions Of Section 190 Cr.P.C Would Be Attracted Inasmuch As Section 190 Envisages That The Magistrate May Take Cognizance Of Any Offence Upon A Police Report Of Such Facts Which Constitute An Offence. After Taking Cognizance The Magistrate Is Empowered To Issue Process Under Section 204 Cr.P.C. For That Purpose He Is Required To Consider The F.I.R And The Statements Recorded By The Police Officer And Other Documents Tendered Along-with The Charge Sheet. It Would Thus Transpire That Upon Receipt Of Police Report Under Section 173 (2) Cr.P.C The Magistrate Is Entitled To Take Cognizance Of An Offence Under Section 190 (1) (b) Even If The Police Report Is To The Effect That No Case Is Made Out Against The Accused, By Ignoring The Conclusions Arrived At By The Investigating Officer And Independently Applying His Mind To The Facts Emerging From The Investigation And Others Documents.

The Decision Bearing Similarity To The Facts Of The Present Case Is Raghubans Dubey V. State Of Bihar AIR 1967 SC 1167. The Appellant In That Case Was One Of The 15 Persons Mentioned As The Assailants In The F.I.R. During The Investigation The Police Accepted The Appellant's Plea Of Alibi And Filed A Charge Sheet Against The Others For Offences Under Section 302,201 And 149 IPC Before The Magistrate. The Apex Court Dealing With The Contention That The Magistrate Had Cognizance Of The Offence So Far As The Other Accused Were Concerned But Not As Regards The Appellant In That Case, At Page 1169 Observed As Under:

"In Our Opinion, 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 Find Out Who The Offenders Really Are And Once He Comes To The Conclusion That Part 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 Proceeding Initiated By His Taking Cognizance Of An Offence. As Pointed Out By This Court In Pravin Chandra Mody V. State Of Andhra Pradesh (1965) 1 SCR 269 The Term "complaint" Would Include Allegations Made Against Persons Unknown. If A Magistrate Takes Cognizance Under Section 190 (1) (a) On The Basis Of A Complaint Of Facts He Would Take Cognizance And A Proceeding Would Be Instituted Even Though Persons Who Had Committed The Offence Were Not Known At That Time. The Same Position Prevails In Our View Under Section 190 (1) (b)."

In M/S India Carat Pvt Ltd. V. State Of Karnataka AIR 1989 SC 885, The Apex Court Laid Down That Upon Receipt Of A Police Report Under Section 173 (2) A Magistrate Is Entitled To Take Cognizance Of An Offence Under S. 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. S. 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. Para 16 Of The Decision Being Relevant Is Abstracted Below.

"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 Cognisance 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 Cognisance 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 Cognisance 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 Sections 200 And 202 Of The Code For Taking Cognizance Of A Case Under Section 190(1) (a) 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.

We Would Also Like To Advert To The Decision In Bhagwant Singh V. Commissioner Of Police And Another AIR 1985 SC 1285 In Which The Apex Court Ruled That The Magistrate Must Give Notice To The Informant And Provide Him An Opportunity To Be Heard At The Time Of Consideration Of The Final Report In Case He Is Of The View That There Is No Sufficient Ground For Proceeding Against Some Of The Persons Mentioned In The F.I.R. The Legal Position Therefore Remains That Even If The Final Report Has Been Submitted By The Investigating Officer Against One Of The Co Accused, The Magistrate Is Duty Bound To Give Notice To The Petitioner By Reason Of His Being Informant Of The Case And In That Event, He Would Be Fully Able To Canvass All The Points Which Shall Be Decided By The Magistrate On Intrinsic Merits. Paragraph 4 Of The Decision Being Germane Is Excerpted Below.

"Now, When The Report Forwarded By The Officer-in-charge Of A Police Station To The Magistrate Under Sub-section (2)(i) Of S. 173 Comes Up For Consideration By The Magistrate, One Of Two Different Situations May 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 Do One Of Three Things : (1) He May Accept The Report And Take Cognizance Of The Offence And Issue Process Or (2) He May Disagree With The Report And Drop The Proceeding Or (3) He May Direct Further Investigation Under Subsection (3) Of S. 156 And Require The Police To Make A Further Report. The Report May On The .other Hand State That, In The Opinion Of The Police, No Offence Appears To Have Been Committed And Where Such A Report Has Been Made, The Magistrate Again Has An Option To Adopt One Of Three Courses : (1) He May Accept The Report And Drop The Proceeding Or (2) He May Disagree With The Report And Taking The View That There Is Sufficient Ground For Proceeding Further, Take Cognizance Of The Offence And Issue Process Or (3) He May Direct Further Investigation To Be Made By The Police Under Sub-section (3) Of Section 156. Where, In Either Of These Two Situations, The Magistrate Decides To Take Cognizance Of The Offence And To Issue Process, The Informant Is Not Prejudicially Affected Nor Is The Injured Or In Case Of Death, Any Relative Of The Deceased Aggrieved, Because Cognizance Of The Offence Is Taken By The Magistrate And It Is Decided By The Magistrate That The Case Shall Proceed. But If The Magistrate Decides That There Is No Sufficient Ground For Proceeding Further And Drops The Proceeding Or Takes The View That Though There Is Sufficient Ground For Proceeding Against Some, There Is No Sufficient Ground For Proceeding Against Others Mentioned In The First Information Report, The Informant Would Certainly Be Prejudiced Because The First Information Report Lodged By Him Would Have Failed Of Its Purpose, Wholly Or In Part. Moreover, When The Interest Of The Informant In Prompt And Effective Action Being Taken On The First Information Report Lodged By Him Is Clearly Recognised By The Provisions Contained In Sub-sec. (2) Of S. 154, Sub-sec. (2) Of S. 157 And Sub-sec. (2)(ii) Of Section .173, It Must Be Presumed That The Informant Would Equally Be Interested In Seeing That The Magistrate Takes Cognizance Of The Offence And Issues Process, Because That Would Be Culmination Of The First Information Report Lodged By Him. There Can, Therefore, Be No Doubt That When, On A Consideration Of The Report Made By The Officer In Charge Of A Police Station Under Sub-section (2)(i) Of S. 173, The Magistrate Is Not Inclined To Take Cognizance Of The Offence And Issue Process, The Informant Must Be Given An Opportunity Of Being Heard So That He Can Make His Submissions To Persuade The Magistrate To Take Cognizance Of The Offence And Issue Process. We Are Accordingly Of The View That In A Case Where The Magistrate To Whom A Report Is Forwarded Under Sub Sec. (2)(i) Of S. 173 Decides Not To Take Cognizance Of The Offence And To Drop The Proceeding Or Takes The View That There Is No Sufficient Ground For Proceeding Against Some Of The Persons Mentioned In The First Information Report, The Magistrate Must Give Notice To The Informant And Provide Him An Opportunity To Be Heard At The Time Of Consideration Of The Report. It Was Urged Before Us On Behalf Of The Respondents That If In Such A Case Notice Is Required To Be Given To The Informant, It Might Result In Unnecessary Delay On Account Of The Difficulty Of Effecting Service Of The Notice On The Informant. But We Do Not Think This Can Be Regarded As A Valid Objection Against The View We Are Taking, Because In Any Case The Action Taken By The Police On The First Information Report Has To Be Communicated To The Informant And A Copy Of The Report Has To Be Supplied To Him Under Sub-section (2)(i) Of S. 173 And If That Be So, We Do Not See Any Reason Why It Should Be Difficult To Serve Notice Of The Consideration Of The Report On The Informant. Moreover, In Any Event, The Difficulty Of Service Of Notice On The Informant Cannot Possibly Provide Any Justification For Depriving The Informant Of The Opportunity Of Being Heard At The Time When The Report Is Considered By The Magistrate.

Likewise In M/S SWIL Ltd V. State Of Delhi AIR 2001 SC 2747, The Apex Court Held That Person Not Joined As Accused In The Charge Sheet Submitted By The Police But His Name Was Shown In Column No. 2 Which Is Meant For The Accused Who Are Not Sent For The Trial Such A Person Can Be Summoned As An Accused By Magistrate At Stage Of Taking Cognizance Of Offence. The Apex Court Further Held That At The Stage Of Taking Cognizance Of The Offence, Provisions Of Section 190 Cr.P.C. Would Be Applicable, Section 190 Inter-alia Provides That The Magistrate May Take Cognizance Of Any Offence Upon A Police Report Of Such Facts Which Constitute An Offence. As Per This Provision, Magistrate Takes Cognizance Of An Offence And Not The Offender. After Taking Cognizance Of The Offence, The Magistrate Under Section 204 Cr.P.C. Is Empowered To Issue Process To The Accused. At The Stage Of Issuing Process, It Is For The Magistrate To Decide Whether Process Should Be Issued Against Particular Person/persons Named In The Charge Sheet And Also Not Named Therein. For That Purpose, He Is Required To Consider The F.I.R And The Statements Recorded By The Police Officer And Other Documents Tendered Alongwith Charge-sheet. Further Upon Receipt Of Police Report Under Section 173 (2) Cr.P.C. The Magistrate Is Entitled To Take Cognizance Of An Offence Under Section 190 (1) (b) Even If The Police Report Is To The Effect That No Case Is Made Out Against The Accused By Ignoring The Conclusion Arrived At By The Investigating Officer And Independently Applying His Mind To The Facts Emerging From The Investigation By Taking Into Account The Statement Of The Witnesses Examined By The Police. At This Stage , There Is No Question Of Application Of S. 319 Cr.P.C. That Provision Would Come Into Operation In The Course Of Any Enquiry Into Or Trial Of An Offence. The Apex Court Taking Into Consideration The Facts Of That Case That Neither The Magistrate Was Holding Inquiry As Contemplated Under Section 2 (g) Cr.P.C Nor The Trial Had Started. He Was Exercising His Jurisdiction Under S. 190 Of Taking Cognizance Of An Offence And Issuing Process. There Is No Bar Under Section 190 Cr.P.C That Once The Process Is Issued Against Some Accused On The Next Date, The Magistrate Cannot Issue Process To Some Other Person Against Whom There Is Material On Record But His Name Is Not Included As Accused In The Charge Sheet.

In Kishun Singh And Others V. State Of Bihar (1993) 2 SCC 16, The F.I.R. Was Lodged Naming 20 Persons Including The Two Appellants As Assailants Of The Deceased Who Died In The Occurrence. After Investigation, Police Submitted Its Report Under Section 173 Cr.P.C. Showing 18 Persons Other Than The Two Appellants As Offenders. The Magistrate Committed Those 18 Persons Named In The Report To The Court Of Sessions Under Section 209 Cr.P.C To Stand Trial. Before Sessions Court An Application Under Section 310 Of The Code Was Filed Praying That Remaining Two Accused Be Summoned And Arraigned As Accused. The Sessions Court Impleaded Them As Co-accused. That Order Was Finally Challenged Before This Court And The Court Dismissed The Appeal By Holding That S. 319 Can Be Invoked Both By The Court Having Original Jurisdiction As Well As The Court To Which The Case Has Been Committed Or Transferred For Trial.

Lastly The Decision In Dharampal V. State Of Haryana (2006) 1 SCC (Cri) 273 Being Relevant On The Point May Also Be Dwelt Upon And Discussed. It Would Appear That The Aforesaid Case Was Directed To Be Heard By A Three-Judge Bench In View Of The Conflict Of Opinion In The Decisions Of Two-Judge Bench In The Cases Of Kishori Singh V. State Of Bihari, (JT (2000) 7 SC 564, Rajinder Prasad V. Bashir (2001) 8 SCC 522 And SWIL Ltd. V. State Of Delhi (2001) 6 SCC 670. In The Said Case, Attention Was Drawn To Two Other Decisions Namely In Kishun Singh V. State Of Bihar (1993) 2 SCC 16 And Ranjit Singh V. State Of Punjab (1998) 7 SCC 149. Having Considered The Matter The Apex Converged To The Conclusion That "We Do Not Think That The Interpretation Reached In Rajnjit Singh Case (supra) Is Correct. In Our View, The Law Was Correctly Enunciated In Kishun Singh Case (supra). Since The Decision In Ranjit Singh Case Is Of Three -Judge Bench,we Direct That The Matter May Be Placed Before The Hon. The Chief Justice For Placing The Same Before A Larger Bench". The Relevant Portion Of Para 2 Being Relevant Is Excerpted Below.

"First Is The Decision In The Case Of Kishun Singh V. State Of Bihar. The Other Is A Three-judge Bench Decision In The Case Of Ranjit Singh V. State Of Punjab. Ranjit Singh Case Has Disapproved The Observations Made In Kishun Singh Case Which Are To The Effect That The Sessions Court Has Power Under Section 193 Of The Code Of Criminal Procedure To Take Cognizance Of The Offence And Summon Other Persons Whose Complicity In The Commission Of The Trial Can Prima Facie Be Gathered Form The Materials Available On Record. According To The Decision In Kishan Singh Case The Sessions Court Has Such A Power Under Section 193 Of The Code. As Per Ranjit Singh Case From The Stage Of Committal Till The Sessions Court Reaches The Stage Indicated In Section 230 Of The Code, That Court Can Deal With Only The Accused Referred To In Section 209 Of The Code And There Is No Intermediary Stage Till Then For The Sessions Court To Add Any Other Person To The Array Of The Accused. The Effect Of This Conclusion Is That The Accused Named In Column 2 And Not Put Up For Trial Cannot Be Tried While Exercising Power Under Section 193 Read With Section 228 Of The Code. This Means That Even When The Sessions Court Applies Its Mind At The Time Of Framing Of Charge And Comes To The Conclusion From The Material Available On Record That, In Fact, Offence Is Made Out Against Even Those Who Are Shown In Column 2, It Has No Power To Proceed Against Them And Has To Wait Till The Stage Under Section 319 Of The Code Reaches, Namely, Commencement Of The Prosecution Evidence. The Effect Is That In Less Serious Offences Triable By A Magistrate, He Would Have The Power To Proceed Against Those Who Are Mentioned In Columns 2, If On The Basis Of Material On Record, He Disagreed With The Police Conclusion, But, As Far As Serious Offences Triable By The Court Of Sessions Are Concerned, That Court Will Have To Wait Till The Stage Of Section 319 Of The Code Is Reached. It, However, Appears That In A Case Triable By The Court Of Sessions, In Law, A Magistrate Would Have No Power To Summon For Trial An Accused Mentioned In Column 2 To Be Tried With Other Accused And To That Extent, The Impugned Order Of The High Court May Have To Be Set Aside But Immediately The Question Involved Herein Would Arise When The Matter Would Be Placed Before The Sessions Court."

The Well Enunciated Legal Position That Is Distilled From The Discussions Of The Above Case Laws Is That The Report Submitted By The Investigating Officer Under Section 173 (2) Of The Cr.P.C Is A Mere Opinion And The Magistrate Is Not Bound By The Opinion Of The Investigating Officer Whether Any Offence Is Made Out Against Any Of The Accused Or Not. The Magistrate Has To Apply His Mind Independently To The Facts Emerging From The Investigation And Also Taking Into Account The Statements Of The Witnesses Examined By The Police During The Investigation And Direct The Issue Of Process To The Accused. In Case When On A Consideration Of The Report Made By The Officer In Charge Of A Police Station The Magistrate Is Not Inclined To Take Cognizance Of The Offence And Issue Process Against Any Of The Accused, The Informant Must Be Given An Opportunity Of Being Heard.

In View Of The Above Decision, It Would Be Open To The Petitioner To Approach The Magistrate For Appropriate Relief And In Case Any Such Application Is Preferred, The Same Shall Be Considered And Appropriate Orders Shall Be Passed Accordingly.

In The Result, We Dispose Of The Petition Observing That The Petitioner Would Be At Liberty To Approach The Magistrate Canvassing All Such Points As Canvassed Before This Court.

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