The Magistrate has the power to independently apply his mind and take cognizance of a case, and the plea of alibi should only be examined during the trial, not at the investigation stage.

Headnote:
Revision - Criminal Procedure - Sections 379 I.P.C. - Summary of Acts and Sections: The court discussed the application of Section 379 of the Indian Penal Code (I.P.C.) and the powers of the Magistrate under Section 156(3) and Section 190 of the Code of Criminal Procedure (Cr.P.C.). The court also referred to the legal principles established in Gangadhar Janardan Mhatre vs. State of Maharashtra, Pakhando and others Vs. State of U.P., and Mohammad Yusuf Vs. State of U.P. to emphasize the Magistrate's independent power to take cognizance and issue process. The court highlighted the limitations of the Sessions Court's revisional power and the inadmissibility of considering the plea of alibi at the investigation stage.
Fact of the Case:

The revisionist constructed a house in a disputed property with mango and neem trees. The respondent, along with others, took possession of the property and goods. The revisionist filed for F.I.R., leading to a final report submitted by the Investigating Officer. The Magistrate, after considering the protest petition, summoned the accused under Section 379 I.P.C. The opposite party filed a criminal revision, leading to the impugned order setting aside the summoning order and accepting the final report.
Finding of the Court:

The court found that the Magistrate had the power to independently apply his mind and take cognizance of the case, and the Sessions Court's acceptance of the plea of alibi at the investigation stage was erroneous. The revision of the revisionist was allowed, and the impugned order was quashed, directing the District and Session Judge to pass a fresh order.
Issues: The issues revolved around the Magistrate's power to take cognizance independently, the admissibility of the plea of alibi at the investigation stage, and the limitations of the Sessions Court's revisional power.
Ratio Decidendi: The Magistrate can independently apply his mind and take cognizance of the case, and the plea of alibi should only be examined during the trial, not at the investigation stage. The Sessions Court's revisional power is limited to examining the illegality, irregularity, and jurisdictional error of the Magistrate's order.
Final Decision: The revision of the revisionist was allowed, and the impugned order was quashed, with directions for the District and Session Judge to pass a fresh order.

JUDGMENT :

1. Heard Sri Anil Bhushan, learned senior counsel assisted by Sri Siddharth kumar Mishra, learned counsel for the revisionist and Sri Suresh Bahadur Singh, learned A.G.A. for the State-opposite party No.1. Even in the revised list none appeared on behalf of the opposite party nos.2 to 4 nor any counter affidavit has been filed on their behalf, this court proceed to hear the matter finally.

2. This revision is directed against the order dated 26.07.2001 passed by learned District and Sessions Judge, Kannauj by which he has accepted the final report submitted by the Investigating Officer and set aside the order dated 25.04.2001 passed by the Judicial Magistrate, Chhibramau by which he has summoned the opposite party no.2 under Section 379 I.P.C.

3. The brief facts of the present case is that the revisionist has constructed a house in the property in dispute and also there are 32 trees of Mango and one tree of Neem. On 06.09.2000 respondent No.2 along with some unsocial elements has broken the lock of the house of the revisionist and took possession on the same and also take away the goods of Rs. 8000/-. The revisionist tried to lodge F.I.R. by approaching the concerned Police Station and by sending Fax message to the Superintendent of Police, but no F.I.R. has not been lodged. Thereafter, revisionist filed an application under Section 156 (3) Cr.P.C. before the Judicial Magistrate on 02.12.2000 and on the application of the revisionist on the same day the Judicial Magistrate, First Class has passed an order directing the Police Station of concerned Police to lodge an F.I.R. and inform the Court. Pursuant to the order passed by the Judicial Magistrate an F.I.R. has been lodged by the police on 07.12.2000, under Sections 147, 504, 506, 427, 448, 379 I.P.C. and the same was registered as Case Crime No. 454 of 2000 and after investigation the Investigating Officer in a mechanical manner submitted final report in favour of the opposite party no.2 without considering the evidence on record.

The revisionist has again approached to the Police Authority for again re-investigation and also filed protest petition before the Judicial Magistrate and on the protest petition of the revisionist the learned Magistrate vide order dated 25.04.2001 have issued summons to the opposite party no.2 under Section 379 I.P.C.

4. Feeling aggrieved by the order dated 25.04.2001 the opposite party no.2 filed a criminal revision before the learned District and Sessions Judge, Kannauj and the revisional court vide impugned order dated 26.07.2021 set aside the summoning order dated 25.04.2001 and also accepted the final report without considering the evidence on record.

5. After hearing the learned counsel for the revisionist and learned A.G.A. for the State and on perusal of the record it reveals that the F.I.R. was registered by the revisionist against opposite party no. 2 under Sections 147, 504, 506, 427, 448, 379 I.P.C. and after investigating final report was submitted by the Investigating Officer in a mechanical manner. Thereafter, the learned Magistrate after considering the protest petition and perusing the record summoned the accused under Section 379 Cr.P.C. vide order dated 25.04.2001, expressing his judicial power.

6. In Gangadhar Janardan Mhatre vs. State of Maharashtra and others 2004 (7) SCC 768, the Court reiterating above view said as under:

"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, exercise of his powers under Section 109(1)(b) and direct the issue of process to the accused." (emphasis added)"

7. In Pakhando and others Vs. State of U.P. reported in 2001 SCC Online All 967 a Division Bench of this Court after considering Section 190 Cr.P.C. has held that if upon investigation Police comes to conclusion that there was no sufficient evidence or any reasonable ground of suspici

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2022 Supreme(All) 776

IN THE HIGH COURT OF JUDICATURE AT ALLAHABADSHAMIM AHMED, J.Prabhakar Pandey – AppellantVersusState of U.P. and Others – RespondentsCriminal Revision No.2341 of 2001Decided on : 30-05-2022

The Magistrate has the power to independently apply his mind and take cognizance of a case, and the plea of alibi should only be examined during the trial, not at the investigation stage.

Cases Referred (2)

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
SHAMIM AHMED, J.
Prabhakar Pandey – Appellant
Versus
State of U.P. and Others – Respondents
Criminal Revision No.2341 of 2001
Decided on : 30-05-2022