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2006 Supreme(All) 442
ALLAHABAD HIGH COURT
Ravindra Singh
MOHAMMAD AHMAD ALIAS LALLU
Versus
STATE OF U P
Decided On : 13 February 2006
Criminal Misc. Application No. 4480 of 1987
S.A.Shah,
The central legal point established in the judgment is the obligation of the Magistrate to follow the proper procedure for taking cognizance in criminal proceedings, including the consideration of the police report and the recording of findings.
Headnote:
Criminal Proceedings - Quashing of Proceedings - Proper Procedure for Taking Cognizance
Fact of the Case:
The applicant filed an application to quash the criminal proceedings against him under Sections 419, 420, and 468 IPC. The learned Magistrate had taken cognizance and summoned the applicant to face trial after rejecting the final report submitted by the police.
Finding of the Court:
The court found that the learned Magistrate had not followed the proper procedure for taking cognizance, as he had not considered the police report and had not recorded any finding to show that any offense was made out against the applicant. The impugned order was deemed illegal and set aside, with directions for the learned Magistrate to pass a fresh reasoned order on the police report after considering the material collected by the Investigating Officer.
Issues: The issues revolved around the proper procedure for taking cognizance in criminal proceedings, the consideration of the police report, and the recording of findings by the Magistrate.
Ratio Decidendi: The court held that in cases where a final report is submitted, the Magistrate is obligated to consider the final report and record findings in respect of the investigation done by the Investigating Officer. If prima facie evidence of an offense is found, cognizance may be taken based on the police report alone. The Magistrate must follow the prescribed procedure and adopt a reasoned approach.
Final Decision: The impugned order was set aside, and the learned Magistrate was directed to pass a fresh reasoned order on the police report after considering the material collected by the Investigating Officer.
This application is filed by Mohd. Ahmad alias Lallu with a prayer to quash the proceedings of Criminal case No. 14 of 1987 State v. Mohd. Ahmad alias Lallu, under Sections 419, 420 and 468 IPC P. S. Maudaha, District Hamirpur and the impugned order dated 24-12-1986 passed by learned C. J. M. Hamirpur by which the learned Magistrate has taken the cognizance and summoned the applicant to face the trial after rejecting the final report.
2. In this case notice was issued to the opposite party No. 2 Masood Ahmad on 14-4-1987. It has been served upon him on 26-12-2004 after service of the notice also the opp. party No. 2 has not turned up
before this Court and no counter-affidavit has been filed on behalf of the opp. party No. 2 and on behalf of the State. The matter is too old. It is not proper to wait further for any response from the side of opp. party No. 2.
3. Heard Sri S. A. Shah learned Counsel for the applicant and learned A. G. A.
4. According to the prosecution version a first Information report was lodged by the opp party No. 2 under Section 419, 420 and 468 IPC at P. S. Maudaha District Hamirpur in case No. 299 of 1985 on 24-10- 1985. Thereafter the matter was investigated by the police who submitted the final report in favour of the applicant. The learned Magistrate has issued the notice to the opp. party No. 2 for filing the objections, if any, against that final report. Thereafter opp. party No. 2 filed a protest application against the final report. After considering the protest report the learned Magistrate has rejected the final report and taken cognizance against the applicant for the offences punishable under Sections 419, 420 and 468 IPC.
5. It is contended by learned Counsel for the applicant that in the present case the criminal proceedings are barred by Section 195 Cr. P. C. and it has been clearly mentioned by the Investigating Officer in the Final Report. But the learned Chief Judicial Magistrate has not considered the grounds given in the Final Report and the learned Magistrate has not taken the cognizance on the basis of the case diary the cognizance has been taken only on the basis of the protest application. The impugned order dated 24- 12-1986 is illegal because the learned C. J. M. has not adopted a proper procedure for taking the cognizance against the applicant. It is further contended that the impugned order is not reasoned order is not reasoned order and learned Magistrate has not recorded any finding after considering the allegations made against the applicant and learned Magistrate has not considered the police report at all.
6. In such circumstances, it was proper for the learned Magistrate to treat the protest application as a complaint but the same was not treated as a complaint. It is opposed by the learned A. G. A. by submitted that the learned C. J. M. has taken the cognizance after considering the protest application. Therefore, there is no illegality in the impugned order.
7. After considering the facts and circumstances of the case and submissions made by learned Counsel for the applicant and learned A. G. A. and from the perusal of the impugned order dated 24-12-1986 it appears that the learned Magistrate has taken the cognizance only on the basis of the protest application. The learned Magistrate has not considered the police report and also not recorded any
finding to show that on the basis of the material collected by the Investigating Officer prima facie any offence is made out against the applicant. It also appears that the learned Magistrate has taken the cognizance without following the proper procedure because, in case a final report is submitted in the Court, the learend Magistrate is under obligation to consider, first the final report and record the finding in respect of the investigation done by the I. O. In case on the basis of the material collected by the I. O. any offence, prima facie is made out, the cognizance may be taken on the police report alon
