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2020 Supreme(All) 138
IN THE HIGH COURT OF ALLAHABAD
RAM KRISHNA GAUTAM, J.
Shyam Babu and Others – Appellants
Versus
State of U.P. and Another – Respondents
Application U/s 482 No. 30776 of 2012
Decided On : 22-01-2020
Advocate Appeared:
For the Appellant : Akhil Kumar Shukla.
For the Respondents: Radha Mohan Pandey, Rajendra Kumar Ojha.
Headnote:
Code of Criminal Procedure, 1973 – Sections 156(3), 161, 190, 482, 200, 202 – Indian Penal Code, 1860 – Sections 419, 420, 467, 468, 471 – Case crime number was got registered, by way of application moved – Wherein, investigation resulted in submission of final report – Against final report, protest petition was filed – On basis of documents, order, was passed by Judicial Magistrate, wherein, final report was rejected and applicants were summoned for offences punishable under Sections 419, 420, 467, 468, 471 I.P.C – No statements under Section 200 of Cr.P.C. or inquiry under Section 202 of Cr.P.C. was made – Rather, summoning was passed, on basis of documents, filed with protest petition – Hence, without following procedure given for complaint cases, impugned order was passed – It has been written in this order that Investigating Officer has not recorded statement of witnesses in accordance with their contentions and this was specifically said in protest petition that no such recording of statement of informant and his witnesses were made, by Investigating Officer – No statement was got recorded, by Investigating Officer and it was complained by informant itself – On basis of statements recorded and evidence collected in case diary, final report was submitted – There was no material for summoning of applicants – On basis of protest petition and documents annexed therewith, impugned summoning order was passed – These evidence were with no option for any rebuttal by applicants and procedure was also not obeyed – Held, legal aspect is there and legal position is very well clear that if informant himself had complained that his statement was not recorded per his own contention, in statement his witnesses were, too, not examined and recorded –Evidence in case diary was not in support of submission of charge-sheet and final report was submitted –On basis of final report and investigation annexed therewith, there was no ground for taking any cognizance or summoning of applicants for those offences nor Magistrate has written so, impugned summoning has been passed, on basis of material annexed with protest petition and it is settled law that at time of summoning and taking cognizance – Material placed on case diary, is to be taken in consideration and once same is insufficient and further evidence is being taken, then, procedure was required and Magistrate was to make inquiry –Documents, which were filed with protest petition, may be taken into consideration – Accordingly, as per law, Magistrate can ignore conclusion arrived at by Investigating Officer and independently apply his judicial mind to facts emerging from investigation and take cognizance of case, if he thinks fit and exercise his power under Section 190 (1)(b) –Magistrate is not bound in such situation to follow procedure laid down in Section 200 and 202 of Cr.P.C. for taking cognizance of case under Section 190 (1)(a), though, it is open to him to act under Section 200 and 202 of Cr.P.C. also, Apex Court held in Minu Kumari and Another vs. State of Bihar, (2006) 4 SCC 359 –Material to be taken into consideration, at time of taking cognizance must be material emerging from investigation i.e. within case diary and not out of case diary, filed by way of protest petition and affidavit – Impugned cognizance taking order as well as summoning order with entire proceeding of Complaint, is being set aside – Application Disposed of. (Paras 5 to 9)
Facts of Case:
Case crime number was got registered, by way of application moved – Wherein, investigation resulted in submission of final report – Against final report, protest petition was filed – On basis of documents, order, was passed by Judicial Magistrate, wherein, final report was rejected and applicants were summoned for offences punishable under Sections 419, 420, 467, 468, 471 I.P.C – No statements under Section 200 of Cr.P.C. or inquiry under Section 202 of Cr.P.C. was made – Rather, summoning was passed, on basis of documents, filed with protest petition – Hence, without following procedure given for complaint cases, impugned order was passed –It has been written in this order that Investigating Officer has not recorded statement of witnesses in accordance with their contentions and this was specifically said in protest petition that no such recording of statement of informant and his witnesses were made, by Investigating Officer –No statement was got recorded, by Investigating Officer and it was complained by informant itself –On basis of statements recorded and evidence collected in case diary, final report was submitted –There was no material for summoning of applicants – On basis of protest petition and documents annexed therewith, impugned summoning order was passed –These evidence were with no option for any rebuttal by applicants and procedure was also not obeyed.
Findings of Court:
legal aspect is there and legal position is very well clear that if informant himself had complained that his statement was not recorded per his own contention, in statement his witnesses were, too, not examined and recorded –Evidence in case diary was not in support of submission of charge-sheet and final report was submitted –On basis of final report and investigation annexed therewith, there was no ground for taking any cognizance or summoning of applicants for those offences nor Magistrate has written so, impugned summoning has been passed, on basis of material annexed with protest petition and it is settled law that at time of summoning and taking cognizance – Material placed on case diary, is to be taken in consideration and once same is insufficient and further evidence is being taken, then, procedure was required and Magistrate was to make inquiry –Documents, which were filed with protest petition, may be taken into consideration – Accordingly, as per law, Magistrate can ignore conclusion arrived at by Investigating Officer and independently apply his judicial mind to facts emerging from investigation and take cognizance of case, if he thinks fit and exercise his power under Section 190 (1)(b) –Magistrate is not bound in such situation to follow procedure laid down in Section 200 and 202 of Cr.P.C. for taking cognizance of case under Section 190 (1)(a), though, it is open to him to act under Section 200 and 202 of Cr.P.C. also, Apex Court held in Minu Kumari and Another vs. State of Bihar, (2006) 4 SCC 359 –Material to be taken into consideration, at time of taking cognizance must be material emerging from investigation i.e. within case diary and not out of case diary, filed by way of protest petition and affidavit – Impugned cognizance taking order as well as summoning order with entire proceeding of Complaint, is being set aside.
Result: Application Disposed of.
JUDGMENT :
RAM KRISHNA GAUTAM, J.
1. The applicants namely, Shyam Babu, Sri Kant and Ram Niwas, by means of this application, under Section 482 Cr.P.C. have invoked the inherent jurisdiction of the Court with prayer to set aside impugned summoning order with entire proceeding of Complaint Case No. 5/11/2005, State vs. Ram Babu and Others, under Sections 419, 420, 467, 468, 471 I.P.C. and P.S. Chibramau, District Kannauj, wherein, summoning order dated 28.8.2012, has been passed by learned Judicial Magistrate, Chibramau, Kannauj, against applicants.
2. Heard learned counsel for the applicants and learned A.G.A. for the State.
3. Learned counsel for the applicants argued that this case crime number was got registered, by way of an application moved under Section 156(3) of Cr.P.C. wherein, investigation resulted in submission of final report. Against final report, a protest petition was filed, annexing therewith certain affidavits and documents. On the basis of these documents, order dated 28.8.2012, was passed by Judicial Magistrate, Chibramau, District Kannauj, wherein, final report was rejected and applicants were summoned for offences punishable under Sections 419, 420, 467, 468, 471 I.P.C. No statements under Section 200 of Cr.P.C. or inquiry under Section 202 of Cr.P.C. was made. Rather, summoning was passed, on the basis of documents, filed with protest petition. Hence, without following the procedure given for complaint cases, under Chapter XV of Code of Criminal Procedure, impugned order was passed. Though, it has been written in this order that Investigating Officer has not recorded statement of witnesses under Section 161 of Cr.P.C. in accordance with their contentions and this was specifically said in protest petition that no such recording of statement of informant and his witnesses were made, by Investigating Officer. Meaning thereby, no statement under Section 161 of Cr.P.C. was got recorded, by Investigating Officer and it was complained by informant itself. Hence, on the basis of statements recorded under Section 161 of Cr.P.C. and evidence collected in case diary, final report was submitted. Meaning thereby, till then, there was no material for summoning of applicants. On the basis of protest petition and documents annexed therewith, this impugned summoning order was passed. Hence, these evidence were with no option for any rebuttal by applicants and a procedure given under Chapter XV of Cr.P.C. was also not obeyed. Hence, for ensuring end of justice, this application has been filed with above prayer.
4. Learned counsel for opposite party No. 2 as well as learned AGA, has vehemently opposed that this cognizance was taken under Section 190 of Cr.P.C. and this summoning was there as a State case. A procedure of complaint case given under Chapter XV of Cr.P.C. was not acted by trial court concerned, hence, no question of recording of statement under Sections 200 or 202 of Cr.P.C. ever arisen. Hence, this application be dismissed.
5. Having heard learned counsels for both sides, it is apparent that a question of fact is not to be seen and appreciated, in exercise of inherent jurisdiction under Section 482 of Cr.P.C. by this Court, rather it is within the domain of Magistrate, concerned. A legal aspect is there and the legal position is very well clear that if informant himself had complained that his statement was not recorded as per his own contention, in statement under Section 161 of Cr.P.C. his witnesses were, too, not examined and recorded under Section 161 of Cr.P.C. the evidence in case diary was not in support of submission of charge-sheet and final report was submitted. Hence, on the basis of final report and investigation annexed therewith, there was no ground for taking any cognizance or summoning of applicants for those offences nor Magistrate has written so, i.e. impugned summoning has been passed, on the basis of material annexed with protest petition and it is settled law that at the time of summoning and t
