Dismissed

Mani Kant Mishra v. State of U.P. and Another

Allahabad HC31 Jan 2018A482/1794/2001

Case brief

AI extract

What is this about?

This Court dismissed an application under Section 482 CrPC seeking quashing of an order taking cognizance despite a final report from the CBCID. The Court held that Section 164 CrPC statements were valid investigative material supporting prosecution, whereas affidavits were not substantive investigation records for this purpose.

What did the court decide?

Application under Section 482 CrPC dismissed; cognizance in Case No. 121 of 1996 upheld.

Mani Kant Mishra Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2018)

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(1)

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A.F.R.

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Order Reserved on : 18.01.2018 Order Delivered on : 31.01.2018

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Court No. - 14

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Case :- APPLICATION U/S 482 No. - 1794 of 2001

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Applicant :- Mani Kant Mishra Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Pankaj Kumar Shukla,Ghanshyam Dwivedi,Utsav Counsel for Opposite Party :- Govt. Advocate,A.K. Awasthi,B.S.Khokher,Manish Tiwari

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Hon'ble Umesh Chandra Tripathi,J.

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[1] Heard Sri Ghanshyam Dwivedi, learned counsel for the applicant, Sri Atharva Dixit, Advocate holding brief of Sri Manish Tiwari, learned counsel for opposite party no. 2 and Sri L.D. Rajbhar, learned Additional Government Advocate for opposite party no. 1 (State of U.P.).

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[2] This application under Section 482 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') has been filed to set aside the order dated 15.09.2000 passed by IIIrd Additional Chief Judicial Magistrate, Mathura in Case Crime No. 121 of 1996, under Sections 394, 302 of the Indian Penal Code (hereinafter referred to as 'IPC') Police Station - Govardhan, District - Mathura, whereby cognizance for the offences under Section 302, 394, 411 IPC against applicant Mani Kant Mishra and co-accused Yog Bahadur and Mahendra Pratap Mishra has been taken, rejecting the final report submitted by the investigating officer. (I.O.).

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[3] Brief facts of the case, as spelt out on perusal of record, are that in the night intervening 16/17.06.1996, informant/complainant Mohan Lal along with his wife Nirmala, sister Jamuna Devi, brother-in-law Praveen, wife of brother-in-law Kamlesh was performing 'parikrama' (a hindu ritual which involves circumambulation of sacred places along a path) around

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(2)

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'Govardhan' (a hindu Deity) situated in District – Mathura. At about 01.00 A.M., four miscreants aged between 20 and 30 years reached on the spot and assaulted the informant and his family members and looted the jewellery worn by the female members of the family. When objected to by the informant Mohan Lal and his brother-in-law Praveen, the miscreants starting assaulting both of them. One of the miscreants fired from his 'katta' (country-made pistol), which hit on the temple of Praveen, due to which he sustained injuries. On alarm being raised by them, many people came to the spot, which resulted into the miscreants fleeing away from the spot. After some time, Senior Superintendent of Police, Mathura Bhavesh Kumar Singh reached on the spot and sent injured Praveen to a local hospital at Mathura for treatment, where he was declared dead by the doctors. On the same day (17.06.1996) at about 05.30 A.M., the informant lodged a first information report (FIR) of the incident at Police Station – Govardhan, District – Mathura. On the same day, at about 11.00 A.M., the applicant Mani Kant Mishra along with co-accused Yogesh Bahadur, Mahendra Pratap Mishra and juvenile in conflict with law Yogesh Chandra Tiwari were arrested by the police with illicit weapons and looted ornaments. On the spot, informant Mohan Lal and other witnesses identified the looted ornaments belonging to them and also identified the miscreants.

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[4] Later, on 20.08.2000, on the application of Suraj Prasad Tiwari, father of juvenile Yogesh Chandra Tiwari, investigation was transferred from local police to Crime-Branch Crime Investigation Department (CBCID). The informant and witnesses of the case have submitted their affidavits before court. Those affidavits have been send to CBCID office through registered post by court. The CBCID without verifying the affidavits of informant and witnesses sent report under Section 169 of CrPC. on the ground that there was no sufficient evidence against the accused. Thereafter,

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(3)

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informant Mohan Lal filed protest petition against police report. [5] On the basis of contents of the FIR, Divisional Officer, CBCID vide order dated 20.08.2000 directed Jaidev Singh, I.O., CBCID to investigate the case. On the basis of the application dated 17.10.1998 moved by I.O. before the Chief Judicial Magistrate, Agra, the statement of informant and witnesses were recorded under Section under Section 164 CrPC, wherein they supported the prosecution version.

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[6] After going through the affidavits filed by the informant and the witnesses and their statements recorded under Section 161 CrPC and Section 164 CrPC, learned Magistrate passed the impugned order.

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[7] Feeling aggrieved by the order of the learned Magistrate, the applicant has preferred the instant application.

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[8] Learned counsel for the applicant contended that the learned Magistrate had considered the affidavits filed by the informant and the witnesses and their statements recorded under Section 164 CrPC for rejecting the final report and taking cognizance. The cognizance under Section 190(1)(b) CrPC on the final report can be taken only if there is material in the case diary to proceed against the accused and for this purpose, no extraneous material like affidavits filed by witnesses or statements recorded under Section 164 CrPC can be taken into consideration. Affidavits and statement of witnesses under Section 164 CrPC are not part of the investigation. In this regard, learned counsel for the applicant has placed reliance on the judgment of this Court in Hari Ram v. State of U.P. and Another 2016 (95) ACC 156, Vimlesh v. State of U.P. and Another (2010) ILR 1 All 258 and Harkesh v. State of Uttar Pradesh 2002 CrLJ 285 .

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[9] Learned AGA, on the contrary, submitted that affidavits of the witnesses have been filed before the court and the same have been

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(4)

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sent to I.O. by the court. Therefore, affidavit is part of the investigation, and hence, learned Magistrate has not committed any error or illegality in passing the impugned order and taking cognizance against the applicant and the other co-accused.

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[10] To appreciate the arguments of the parties, it is necessary to look into the provisions of Section 190 of CrPC. Provisions of Section 190 CrPC reads as follows :

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"190. (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-

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(a) upon receiving a complaint of facts which constitute such offence;

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(b) upon a police report of such facts;

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(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

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(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."

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[11] From the perusal of Section 190(1)(b) CrPC, it is evident that the Magistrate may take cognizance of any offence upon a police report of facts which constitute such offence. This provision has been dealt with in catena of cases by Hon'ble Apex Court such as Gangadhar Janardhan Mhatre v. State of Maharashtra and others 2004 (7) SCC 768, Tula Ram v. Kishore Singh AIR 1977 SC 2401 and M/s Carat Pvt. Ltd. v. State of Karnataka 1989 (26) ACC 280 (SC). In the aforementioned cases, Hon'ble Apex Court held that Magistrate can ignore the final report submitted by the police including the conclusion and take cognizance of the case under Section 190(1)(b) CrPC on the basis of material collected during the investigation.

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(5)

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[12] In Hari Ram v. State of U.P. Another (supra), this court had quashed the cognizance order on the ground that the Magistrate had passed the cognizance order only on the basis of facts stated in the protest petition and relying on the affidavit with protest petition. The Magistrate has not referred to any material collected by the I.O.

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[13] In Harkesh v. State of Uttar Pradesh (supra) cognizance order was quashed on the basis that Magistrate had also considered affidavits of the witnesses filed with the protest petition, observing that the Magistrate cannot make use of any material or evidence other than the investigation records while taking cognizance under Section 190(1)(b) CrPC.

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[14] In the present case, it has to be seen that whether affidavits filed before the court or the I.O. or statements recorded under Section 164 CrPC are materials collected during investigation or not. There is no provision in CrPC to take on record or produce affidavits of witnesses during investigation under Chapter XII of CrPC or during enquiry by Magistrate under Chapter XV of CrPC. Affidavits are produced to the I.O. during investigation and to the Magistrate during enquiry only to compel the I.O. and the Magistrate to act according to the wishes of the deponent. I.O. or the Magistrate has no opportunity to interrogate or examine the deponents to test their trustworthiness.

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[15] As per above provision of CrPC, affidavits of witnesses should neither be taken on record during investigation or enquiry nor any opinion should be formed by the I.O. or the Magistrate on the basis of those affidavits. Section 164 of CrPC reads as follows :

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Recording of confessions and statements. - (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any

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(6)

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other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:

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Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

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Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

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(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

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(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.

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(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-

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"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A. B.

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Magistrate".

(5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

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(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.

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[16] From the perusal of the aforesaid provision, it is evident that although statement under Section 164 CrPC is recorded by the Magistrate, but it is recorded during course of an investigation under Chapter XII of CrPC and it is material collected during the investigation. Therefore, it is open to the Magistrate while taking cognizance to consider the statement recorded under Section 164 CrPC.

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[17] From the perusal of the impugned order, it is also evident that learned Magistrate in taking cognizance had considered upon the statements of witnesses recorded by the police under Section 161 CrPC and their statement recorded by the Magistrate under Section 164 CrPC and also the arrest of accused-applicant and other co-accused, recovery of looted ornaments from their possession on 17.06.1996 at 11.00 A.M. and identification thereof. The learned Magistrate had specifically narrated in the impugned order that in their statements under Section 164 CrPC, the informant and witnesses have supported the prosecution version. In such circumstances, affidavits of informant and witnesses were not, in any way, material for arriving at conclusion and in taking cognizance by the Magistrate against the applicant and other accused.

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[18] Merely on the basis of casual reference of the affidavits of the

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witnesses in the impugned order, it cannot be said that the impugned order passed by the learned Magistrate is illegal or erroneous.

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[19] In view of above, I am of the considered view that there is no infirmity or illegality in the impugned order passed by the learned Magistrate.

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[19] In the result, the instant application, being devoid of merit, is accordingly dismissed . The impugned order dated 15.09.2000 passed by IIIrd Additional Chief Judicial Magistrate, Mathura in Case No. 121 of 1996, under Sections 394, 302 IPC, Police Station - Govardhan, District – Mathura is hereby upheld.

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[20] Let a certified copy of this order be send to the Magistrate concerned for necessary compliance, immediately.

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Order Date :- 31.1.2018 I. Batabyal

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[Umesh Chandra Tripathi,J.]

Mani Kant Mishra v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Mani Kant Mishra v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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