Alok Singh Vs State of U.P. and Another

A.F.R.

Court No. - 83

Case :- APPLICATION U/S 482 No. - 1329 of 2020

Applicant :- Alok Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Syed Imran Ibrahim,Manas Bhargava,Manish Tiwary(Senior Adv.) Counsel for Opposite Party :- G.A.,Muktesh Kumar Singh

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Hon'ble Suresh Kumar Gupta,J.

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This application u/s 482 Cr.P.C. has been filed by the applicant with a prayer to quash the summoning order dated 7.12.2019 passed by Civil Judge, (SD/FTC), Jaunpur, in case No. 24 of 2019 (Rinki Singh Vs. State of U.P.) arising out of case crime No. 168 of 2019, under Sections 354, 504, 506 IPC, P.S. Newaria, District Jaunpur.

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The brief facts of this case are that the opposite party No. 2 lodged FIR by means of Application under Section 156(3) Cr.P.C. dated 17.5.2019 with the allegations that on 7.5.2019 the opposite party No. 2 who is an 'Asha-Sangini', at that time was invited by the applicant to participate in a meeting that was presided over by the applicant (Medical Superintendent) and when the meeting was over, the applicant allegedly called the prosecutrix in his room and made sexual overtures at her and also the applicant tried to establish physical contact with her which was resisted by the opposite party No. 2. Being aggrieved with applicant's molestation, hurling abuses and intimating with her, on the basis of 156(3) Cr.P.C., FIR was lodged by the opposite party No. 2 against the applicant under Sections 354, 504 and 506 IPC.

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Subsequently, the statement of the victim has been recorded under Section 164 Cr.P.C. before the learned Magistrate and under Section 164 Cr.P.C. she elaborated version as brought forward by her in the FIR and in the statement under Section 161 Cr.P.C. Investigating Officer had recorded the statement of three independent witnesses, namely, Devendra Kumar Singh, Ankit Kumar Maurya and Rekha Rani Pandey. On 29.9.2019, Investigating Officer incorporated the statements of 13 independent witnesses. All of them have specifically stated that the proceedings have been initiated by the prosecutrix against the applicant are false, malafide and only in order to exert pressure upon him as the applicant recommended the cancellation of vaccination centre of opposite party No. 2. Investigating Officer after considering the statement of independent witnesses submitted the final report in favour of the applicant.

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Being aggrieved by the final report, opposite party No. 2 moved a Protest

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Petition before the learned court below on 22.11.2019 alongwith the affidavit of three witnesses, namely, Bhawana Singh, Rekha Maurya and Kamlesh, a copy of the Protest Petition is annexed as annexure-7 of this application.

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After considering the protest petition which includes the affidavit of the above named witnesses, learned court below rejected the final report and passed the cognizance order to face the trial under Sections 354, 504 and 506 IPC. Learned counsel for the applicant submitted that the learned court below relied the Protest Petition only on the basis of the affidavit which comes under the category of extraneous material. This affidavit is not the part of the case diary.

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Learned counsel for the applicant relied upon the following judgements passed in Crl. Misc. Application No. 3264 of 2000 (Pakhandu Vs. State of U.P.) decided on 9.13.2001; Application U/s 482 Cr.P.C. No. 882 of 2019 (Rishipal and others Vs. State of U.P.) decided on 20.2.2019; Application u/s 482 Cr.P.C. No. 4314 of 2005 and Application U/s 482 Cr.P.C. No. 6652 of 2005 (V.V. Shree Khande and others Vs. State of U.P. and another) both decided on 14.3.2019.

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Learned AGA and learned counsel for the opposite party No. 2 vehemently opposed the prayer made by the applicant and submitted that the learned trial court rightly accepted the Protest Petition filed by the opposite party No. 2 and submitted that the order passed by Civil Judge (Senior Division) Fast Track Court, Jaunpur dated 17.12.2019 is perfectly legal and there is no irregularity or illegality in the order passed by the learned court below. Learned court below clearly submitted that the Investigating Officer did not bother to record the statement of cited witnesses in the FIR. Investigating Officer only recorded the statement of another so-called independent witness. Since, the complainant clearly stated in the Protest Petition that the Investigating Officer did not consider the affidavit filed by the cited witnesses-Kamlesh Yadav, Rekha Maurya and Bhawna Singh which is earlier submitted by him before the S.P. concerned. Learned trial court opined that the offence relating to sexual assault, is solely based on the solitary evidence of the victim. On this conclusion, learned court below rightly summoned the accused under Section 190(1)b as a State case. There is no infirmity in the order passed by the learned Magistrate.

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Learned counsel for the applicants contended that where police submits final report, though it is open to the Magistrate to take cognizance under S. 190 (1) (b) Cr. P. C. on the basis of investigation records but in that event he cannot take any external aid of any other piece of evidence or material which does not form part of police papers. If he decides to take into account any material or evidence other than police papers prepared during investigation, he is bound to comply with the requirement of Ss. 200 and 202 of the Code. It was argued that since in the present case the learned Magistrate has taken into consideration the affidavits of the

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complainant and other witnesses filed along with the protest petition, he was bound to follow procedure laid down for complaint cases. It was also contended that if the Magistrate felt that the investigating officer failed in his duty in collecting relevant material, he should have directed further investigation instead of issuing process against the applications on the basis of material brought on record in the form of affidavits.

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Chapter XIV of the Code of Criminal Procedure deals with the conditions requisite for initiation of proceedings. For the purpose of this case we are concerned with S. 190 (1) alone which is reproduced below.

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"190. Cognizance of offences by Magistrates :- (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-sec. (2), may take cognizance of any offence - (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (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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I have heard the learned counsel for the applicant, learned AGA and perused the record.

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Learned counsel for the appellant relied upon paragraph 15 and 16 of the Judgement passed in Crl. Misc. Application No. 3264 of 2000 (Pakhandu Vs. State of U.P.) decided on 9.13.2001 which is quoted hereunder-

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"(15) From the aforesaid decisions, it is thus clear that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require :- (I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under Section 190 (1) (b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner, or. (IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190 (1) (a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr. P. C. and thereafter decide whether complaint should be dismissed or process should be issued.

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(16) Where the Magistrate decides to take cognizance of the case under Section 190 (1) (b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code, and consequently the proviso to Section 202 (2), Cr. P. C. will

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have no application. It would however be relevant to mention that for forming such an independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190 (1) (a) of the Code and calls upon the complainant to examine himself and the witnesses present if any under Section 200. "

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On perusal of the Judgement of this Court passed in Crl. Revision No. 1210 of 2000 (Harkesh and others Vs. State of U.P. and others) decided on 31.8.2001 which is quoted hereunder-

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"(16.) The position is thus clear that when Magistrate receives police report under Section 173 (2), he is entitled to take cognizance of an offence even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during investigation and other material collected during investigation and form his own opinion independently without being bound by the conclusions arrived at by the investigating agency and take cognizance under Section 190 (1) (b) of the Code and direct the issue of process to the accused. However the Magistrate cannot make use of any material or evidence other than the investigation records while acting under Section 190 (1) (b) of the Code. If he chooses to make use of any materials other than the investigation records, he will have to follow the procedure laid down in relation to complaint cases, on the basis of original complaint or application moved under Section 156 (3) Cr. P. C. which otherwise tantamount to complaint or the Protest petition filed against acceptance of final report treating the same as complaint. This proposition would be in consonance with the provision of Section 207 which inter-alia provides for supply of copy of statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses and any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173.

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(17.) In the present case the learned Magistrate while taking cognizance under Section 190(1)(b) of the Code has taken into consideration the affidavits of complainant and other witnesses filed alongwith Protest Petition which was not permissible in law. He could take cognizance on the basis of the Protest Petition or the original compliant but in that event he was bound to follow procedure laid down for complaint cases. The distinction between two types of cognizance is apparent in as much as cognizance under Section 190(1(b) is taken only on the basis of papers forwarded by police under Section 173(2)Cr.P.C. but when the magistrate makes up his mind to take into consideration other material or evidence would be a case of taking cognizance under Section 190(1)(a) of the Code and for that matter procedure prescribed for complaint cases under Sections 200 and 202 Cr.P.C. has to be followed. If the Magistrate was of the opinion that the investigating officer had failed to record statements of material witnesses, it was open for the learned Magistrate to have sent back the case to police for a further investigation. "

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On considering the rulings cited by learned counsel for the appellant, cognizance and summoning orders passed by the learned Civil Judge

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(Senior Division), is by considering the affidavit filed by the named eye witnesses is not legally sustainable. It is true that the statement of the cited witness was not recorded by the Investigating Officer. Investigating Officer committed the gross negligence in this matter. It is incumbent duty of the Investigating Officer to record the statement under Section 161 Cr.P.C. of named witnesses cited in the FIR, it is obligatory upon the Magistrate either to direct the Investigating Officer to further investigate the matter under Sections 156(3) Cr.P.C. or adopt the procedure of complaint case as per law laid down by Pakhandu Vs. State of U.P. (Supra) .

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Considering the rival submissions made by learned counsel for the parties and perused the record, I am of the view that the impugned order dated 7.12.2019 which clearly indicates that the Magistrate considered the affidavit filed alongwith Protest Petition which cannot be sustained and summoning order is liable to be set aside.

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The present application u/s 482 Cr.P.C. is allowed .

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The impugned order dated 7.12.2019 is hereby set aside and the case is remanded back to the Magistrate, concerned with the direction to pass fresh order in light of the settled legal position as discussed above.

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Order Date :- 20.1.2020 Ankita

Alok Singh v. State of U.P. and Another

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Alok Singh v. State of U.P. and Another

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