Allowed

Rajendra Kumar Agarwal v. State of U.P. and Another

Allahabad HC30 Jul 2019A482/9/1999

Case brief

AI extract

What is this about?

The High Court quashed an impugned order summoning the applicant as a State case under Section 482 Cr.P.C., holding the lower Magistrate erred in bypassing Sections 200 and 202 Cr.P.C. by treating a protest petition as a State case without following due procedure.

What did the court decide?

Impugned orders dated 24.05.1995 and 26.11.1998 set aside and Magistrate directed to pass a fresh order complying with Sections 200 and 202 Cr.P.C.

Rajendra Kumar Agarwal Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2019)

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Court No. - 34

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Case :- APPLICATION U/S 482 No. - 9 of 1999

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Applicant :- Rajendra Kumar Agarwal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- N.I.Jafri Counsel for Opposite Party :- Govt. Advocate,C.P. Singh

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Hon'ble Sudhir Agarwal,J.

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Order dated 29.04.2009 having been recalled vide order of date passed on Recall/Restoration Application, application is restored to its original number.

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As requested and agreed by learned counsel for applicant, I proceed to hear and decide this case at this stage.

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Heard Sri N.I. Jafri, learned counsel for applicant, learned AGA for State of U.P. and perused the material available on record.

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Applicant has invoked inherent jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash charge sheet dated 24.05.1995 and Revisional Court's order dated 26.11.1998 as well as further proceedings of Criminal Case No. 14 of 1995, under Sections 409, 467, 468 and 471 IPC, pending in the Court of IIIrd Additional Chief Judicial Magistrate, Bijnor.

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It is submitted that a final report was submitted by police whereagainst protest petition was filed and statements of complainant and other witnesses were also recorded under Sections 200 and 202 Cr.P.C.. Magistrate concerned, after considering the protest petition and documents placed along with it as also the statement of complainant and other witnesses recorded under Sections 200 and 202 Cr.P.C., passed impugned

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order dated 24.05.1995 summoning accused-applicant, Rajendra Kumar Agarwal under Sections 409, 467, 468 and 471 IPC and treated the same as a State case which is not permissible. Applicant also filed revision against said order which has been rejected vide order dated 26.11.1998 passed by IIIrd Additional Sessions Judge, Bijnor. It is also submitted that procedure adopted by Magistrate concerned is clearly illegal and Revisional Court has not considered the same.

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In Tula Ram Vs. Kishore Singh, AIR 1977 SC 2401, Court said that a Magistrate can ignore a final report submitted by Police including the conclusion and take cognizance of case under Section 190(1)(b) on the basis of material collected during investigation and issue process, or in the alternative, he may take cognizance of original complaint, examine the complainant and his witnesses and thereafter issue process to accused, if he is of opinion that case should be proceeded with. 7. In M/s India Carat Pvt. Ltd. Vs. State of Karnataka 1989 (26) ACC 280 (SC) , Court has observed in para 16 of judgment that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion of making out a case against accused. Magistrate can ignore conclusion arrived at by Investigating Officer, independently applying his mind to the facts emergent from investigation and can take cognizance of case or in alternative he can take cognizance of original complaint and examine complainant and his witness and thereafter issue process to accused, if he is of opinion that the case should proceed.

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Having said so, Court has also made it clear that while proceeding to issue process considering facts emergent from investigation and taking a different view than what has been reported by Police, Magistrate need not apply procedure laid down in Section 200 and 202 Cr.P.C.. However, if Magistrate finds lack of material with investigation of Police, option available to him is to take into account original complaint and if that is adopted by Magistrate, he is bound to follow procedure prescribed in Section 200 and 202 for taking cognizance, but he can not mix-up the material placed by complainant along with Protest Petition to take cognizance after rejecting Police Report but without following the procedure prescribed under Chapter XV of Cr.P.C.

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In Kallu and others Vs. State of U.P. 2010 (69) ACC 780 , Court said:

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“Therefore, in present case also, if the material in the case diary was not sufficient for summoning the accused persons to face the trial, then the protest petition filed by the complainant against the final report ought to have been registered as complaint and after following the procedure laid down in section 200 and 202 Cr.P.C.”

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In Writ Petition- Misc. Single No. 3776 of 2012 (Mohammad Shafiq Khan and others Vs. State of U.P. and others) decided on 24.03.2014, Court, in para 9, held as under:

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“9. Therefore, it is clear from the above that the Magistrate on the basis of protest petition can reject the final report, he may treat the protest petition as complaint, he may also direct for further investigation.” (emphasis added)

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Looking to exposition of law, discussed above, I find that in the present case Magistrate should have proceeded as a complaint case and not as a State case. This approach on the part of Magistrate, I find contrary to what has been laid down in the above authorities and the same has also not been considered

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by Revisional Court, therefore, impugned summoning order cannot be sustained.

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In the result, this application is allowed. Impugned orders 24.05.1995 and 26.11.1998 are hereby set aside. Magistrate concerned is directed to pass fresh order on final report and protest petition in the light of observations made above and in accordance with law.

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Order Date :- 30.7.2019 Siddhant Sahu

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Court No. - 34

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Case :- APPLICATION U/S 482 No. - 9 of 1999

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Applicant :- Rajendra Kumar Agarwal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- N.I.Jafri Counsel for Opposite Party :- Govt. Advocate,C.P. Singh

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Hon'ble Sudhir Agarwal,J.

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Re: Criminal Misc. Delay Condonation Application No. 382435

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of 2017

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