Dismissed

Ashish @ Chhotu and 4 Others v. State of U.P. and Another

Allahabad HC9 May 2023CRLA/1489/2023

Case brief

AI extract

What is this about?

The High Court dismissed an appeal seeking to quash a summoning order. The court held that the Special Court acted legally in taking cognizance under Section 190(1)(b) Cr.P.C. upon the final report, finding a primafacie case against the appellants despite the police's view of no offence and conflicting versions of the incident.

What did the court decide?

Prayer to quash the summoning order dated 20.12.2022 was refused; appellants directed to appear for bail applications.

Ashish @ Chhotu and 4 Others Vs… — Constitutional and Fundamental Rights | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:100241

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Court No. - 81

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Case :- CRIMINAL APPEAL No. - 1489 of 2023 Appellant :- Ashish @ Chhotu And 4 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Rajiv Lochan Shukla,Sharda Prasad Mishra Counsel for Respondent :- G.A.,Mohd. Shoeb Khan

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Hon'ble Mohd. Faiz Alam Khan,J.

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Heard Shri Rajiv Lochan Shukla, learned counsel for the appellants, Shri Mohd. Shoeb Khan, learned counsel appearing for the respondent no.2/informant as well as learned Additional Government Advocate for the State and perused the record.

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The instant appeal under Section 14-A(1) SC/ST (Prevention of Atrocities) Act, has been filed by the appellants- Ashish @ Chhotu, Manish Kumar Prajapati, Arun Nishad, Deepchandra @ Deepu and Pradeep Kumar Nishad with the prayer to allow the present appeal and quash the summoning order dated 20.12.2022 passed by the learned Special Judge (S.C./S.T. Act), Gorakhpur in Misc. Case F.R. No. 304 of 2021 (Case Crime No. 930 of 2020) "Akash @ Mantu Kannaujiya vs. Ashish @ Chhotu Prajapati and others", under Sections 147, 148, 149, 307, 504, 506 I.P.C. and Section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Amendment 2015), Police Station Pipraich, District Gorakhpur and to stay the further proceedings of the aforesaid misc. case, pending before the Special Judge (S.C./S.T. Act), Gorakhpur.

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Learnet counsel appearing for the appellant while drawing the attention of the court towards the impugned order dated 20.12.2022, where by the 'Final Report' submitted by the investigating officer has been rejected and the appellants have been summoned to face trial, vehemently

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submits that the trial Court has committed manifest illegallity in passing the impugned order.

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Elaborating further, it is stated that an F.I.R. was lodged by the opposite party no.2 against the appellants on 30.11.2020 under the orders of the Magistrate passed under section 156(3) Cr.P.C. stating therein that on relevant day and time the appellants and other 03-04 unknown persons arrived in a car bearing Registration No. UP53CJ0456 and hit their motorcycle and with the intention of causing their murder fired Gun shot from the gun and country made pistols, which they were possessing and the gun shots fired by them had hit him (informant) on his back and some how the informant may save his life and despite efforts his F.I.R. was not lodged and he was also arrested in the intervening night of 20/21.06.2020 and was sent to jail in connection with the F.I.R. lodged by Ashish @ Chhotu Prajapai.

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It is further submitted that the investigating officer after investigating the case has submitted a 'Final Report', which has been rejected by the Special Court and the cognizance appears to have been taken under section 190(1)(b) of the Cr.P.C. and while taking the cognizance under section 190(1)(b) of the Cr.P.C., the trial Court has not considered the material collected by the investigating officer during investigation in order to submit a 'final report' in right perspective.

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Attention of this Court was drawn to the fact that the incident is shown to have occurred on 9.06.2020 and the medical examination of the informant/injured is shown to have taken place on 24.06.2020, wherein two wounds have been shown as of simple nature and also infective and the duration of the injuries has also not been mentioned therein and it appears that these injuries were subsequently manufactured in order to cook a false case against the appellants.

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Attention of the court has also been drawn towards the first information report lodged by the appellant no.3 namely Arun Nishad against the

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opposite party no.2 and five other persons, where in allegations have been levelled that on 09.06.2020 at about 6:00 p.m. the accused persons of this F.I.R. came to the house of the appellant no.3 and after abusing them opened gun shot fire wherein the elder brother of the informant was injured and thereafter accused persons fled away firing indiscriminately, whereby a boy Aditya Sharma, aged about 08 years was also injured. The appellant no.3 had also stated to have taken his brother Deepchandra and injured Aditya Sharma to the 'Medical College', where their condition is serious.

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Learned counsel for the appellant has also drawn the attention of this Court towards the statement of the S.H.O. of Police Station Burhalganj, District Gorakhpur, pertaining to the incident occurred on 09.06.2020, a copy of this statement has been placed at Page No. 72 of the Paper Book, wherein the S.H.O. has stated that it was the opposite party no.2 and his companions who had gone to the house of the appellant no.3 and started firing indiscriminately and also that in the indiscriminating firing done by them, a boy Adiya Sharma and Deepchandra was also injured and also that the police started chasing the miscreants and the police force of other police stations was also called and the police party fired in self-defence which had hit one of the miscreants Vipin Singh, who was arrested and informed that his other companions were Akash Kanaujiya @ Mantu, Yogesh Chaudhari and thereafter on account of pain he could not tell anything further.

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Highlighting the above facts, it is submitted that the investigating officer has submitted the 'final report' after assessing the correct facts, but the trial Court has not paid much required attention to the material shortcomings appearing in the case of the prosecution and, thus, has exercised its discretion illegally by summoning the appellants to face trial in the offences wherein they have been summoned by taking

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cognizance under section 190(1)(b) of the Cr.P.C. Thus, the impugned order suffers from manifest illegality and is liable to be set-aside.

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Shri Mohd. Shoeb Khan, learned counsel appearing for the respondent no.2/informant on the other hand opposes the submissions made on behalf of the appellants and submits that the investigating officer has submitted the 'Final Report' on the basis that the appellant Chhotu @ Ashish had fired in self-defence and had he not fired in self-defence, he might have been done to death by the opposite party no.2 and his companions, as on 14.10.2019 also appellant Chhotu @ Ashish Prajapati and his companions had attempted to commit the murder of opposite party no.2.

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It is vehemently submitted that in the first information report lodged by the appellant no.3, there is no whisper pertaining to any gun shot fired by the appellant no.3 in self-defence and the investigating officer in connivance with the appellants has carved out a new case, which was not even mentioned by the appellant no.3 in his first information report.

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It is further submitted that much reliance has been placed by the appellants on the statement of S.H.O. Manoj Kumar Rai of Police Station Burhalganj, District Gorakhpur, but the statement of the S.H.O. Manoj Kumar Rai is in direct contrast of the story as mentioned by the appellant no.3 in the first information report lodged by him.

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It is also submitted that the injuries, which have been sustained by the opposite party no.2 may not be self-inflicted and the opposite party no.2 has also been medically examined in prison and, thus, the appellants in connivance with the appellants had submitted the 'Final Report', which has been rightly rejected by the Special Court/Trial Court and no illegality may be attached to the impugned order and, thus, the appeal is liable to be set-aside.

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Learned A.G.A. has also supported the submissions made by learned counsel for opposite party no.2 and conclude that having regard to the injuries sustained by the opposite party no.2, no illegality has been committed by the appellate Court.

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"The law governing the discretion of the Magistrate or Special Court with regard to dealing with the situation when a Final report has been submitted by police after investigation is no more res integra. There can not be any other proposition that in case of submission of a final report by the Investigating Officer, there are three options available before the Magistrate. (i) He after providing an opportunity to the informant may accept the final report or (ii) He can directly take the cognizance of the offence on the basis of the material available with the final report under Section 190 (1) (b) and may issue the process against the accused persons or (iii) may instead of taking cognizance of the offence may direct further investigation in the matter or taking cognizance of the matter under Section 190 (1)(a) and proceed under Chapter XV of the Cr.P.C. In this case the Magistrate has opted to proceed under Section 190(1)(b) of the Cr.P.C.

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In Bhagwant Singh v. Commissioner of Police reported in AIR 1985 SUPREME COURT 1285 The Honble Supreme Court held as under:- " 4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of S. 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under subsection (3) of S. 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156 and require the police to make a further report."

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In India Carat Pvt. Ltd., M/s. v. State of Karnataka,1989 CRI. L. J. 963, It is held by Honble Supreme Court that Upon receipt of a police report under S.173(2) a Magistrate is entitled to take cognizance of an offence under S.190(1)(b) of the Code 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 the investigation and take cognizance of the offence complained of and order the issue of process to the accused. S.190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. 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, in exercise of his powers under S.190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Ss.200 and 202 of the Code for taking cognizance of a case under S.190(1)(a) though it is open to him to act under S.200 or S.202 also.

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In Pakhandu v. State of U.P. reported in 2002 CRI. L. J. 1210 , the case relied on by the applicant a Divisional bench of this court opined as under:-

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"Where cognizance has been taken under S. 190(1)(b), Cr.P.C. only on the basis of material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for complaint cases and to such a case proviso to sub-sec. (2) of S. 202, Cr.P.C. shall have no application. 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 S. 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 S. 190(1)(a)

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upon the original complaint or protest petition treating the same as complaint and proceed to act under Ss. 200 and 202, Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued. Where the Magistrate decides to take cognizance of the case under S. 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 Ss. 200 and 202 of the Code, and consequently the proviso to S. 202(2), Cr.P.C. will have no application. 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 the stage to make use of any material other than investigation records, unless he decides to take cognizance under S. 190(1)(a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under S. 200. From the above it is absolutely clear that proviso to sub-sec. (2) of S. 202 of the Code will apply only to a case where the Magistrate has taken cognizance under S. 190(1)(a) and has opted to hold inquiry under S. 202 after examining the complainant and witnesses present, if any, under S. 200, Cr.P.C."

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In Gangadhar Janardan Mhatre v. State of Maharashtra reported in AIR 2004 SUPREME COURT 4753 Honble Supreme Court held as under:-

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"When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section

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156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code 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 the investigation and take cognizance of the offence complained of and order the issue of process to the 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 that the investigation has made out a case against the accused. 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 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. (See M/s. India Sarat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885)."

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In Minu Kumari and another Vs. State of Bihar and others MANU/SC/8098/2006 : 2006 (4) SCC 359, Supreme Court said as under:

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"11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of

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a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code 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 the investigation and take cognizance of the offence complained of and order the issue of process to the 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 that the investigation has made out a case against the accused. 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 190(1)(b) and direct the issue of process to the accused."

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In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294, Hon'ble Supreme Court held as under :

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"Where the magistrate decides to take cognizance under section 190(1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C. The Magistrate could not take cognizance under section 190(1)(b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e., protest petition and affidavits while taking cognizance under section 190(1)(b) Cr.P.C., the impugned order is vitiated."

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This Court has considered the submissions made by learned counsel for the parties and have perused the record including the case diary, which has been submitted by the State for the purpose of perusal in the background of law placed above and find that with regard to the incident occurred on 09.06.2020, rival contensions have been made with

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regard to the occurrence of the incident. An F.I.R. has been lodged by the appellant no.3 on 10.06.2020 at Police Station Pipraich, Gorakhpur, wherein on 09.06.2020 at about 6:00 pm. the appellant no.3 is shown to be with his elder brother Deepchandra (appeallant no.4) and other persons when the opposite party no.2 and other accused persons named therein are shown to have arrived and started firing gun shots indiscriminately whereby the injured Deepchandra sustained firearm injury and when an alarm is raised and the villagers started assembling, the accused persons fled away and in the indiscriminate firing made by them, one boy Aditya Sharma was also injured and both the injured persons were taken to the hospital.

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With regard to the same incident, the witness Manoj Kumar Rai, then S.H.O. of Police Station Burhalganj, District Gorakhpur, whose statement has been highlighted by learned counsel for the appellants also, has stated to the tune that at relevant day and time he got an information about the firing being done at the house of Chhotu Prajapati and when the police force there, they were informed by the villagers that 04-05 miscreants after firing gun shots had fled away in a particular direction, on which he informed the police force of the other police stations. It was also informed that a boy named Aditya Sharma, aged about 12 years has also been injured in the incident and when they were chasing the miscreants, they met injured Deepchandra (appellant no.4), who informed that the miscreants have also injured him by firing gun shot and he was sent to the hospital and, thereafter, one of the miscreants namely Vipin Singh was arrested, who was also injured in the firing made by the police personnels in self-defence and have stated that the opposite party no.2 was also with him.

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Perusal of the 'Final Report' submitted by the investigating officer in the instant case, would reveal that the same has been submitted on the ground that the appellant Ashish@Chhotu was having a right to defend

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his person and he has exercised this right by firing gun shots and had he not fired the gun shots, he might have been done to death by the appellant and his associates.

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Significantly, this is not the case of the appellant- Ashish@Chhotu, who had lodged the first information report against the opposite party no.2 and other miscreants. Thus, we are having three different versions of the single incident and the truth may only be known during the course of trial.

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There cannot be any doubt in the proposition that while taking cognizance under section 190(1)(b) of the Cr.P.C., the Special Court or the Magistrate may take into consideration all the material collected by the investigating officer during the course of investigation and if a primafacie case is reflected for the purpose of proceeding further, the offenders may be summoned to face trial. Perusal of the record would reveal that there was sufficient material on record on the basis of which appellant may be summoned to face trial.

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Thus, keeping in view all the facts and circumstances of the case, I do not find any illegality in the impugned order of date 20.12.2022, whereby the cognizance has been taken under Section 190(1)(b) of the Cr.P.C., the 'Final Report' has been rejected and the appellants have been summoned to face trial.

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Resultantly, the prayer of the appellants so far as the same is concerned to quash the summoning order dated 20.12.2022 and entire proceedings of the case pending before the Trial Court/Special Court is, hereby, refused.

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As it is informed that the appellant have still not procured regular bail in the instant case and a request has also been made by learned counsel for the appellants that the appellants are ready to appear before the trial Court for the purpose of securing regular bail and suitable directions be

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given to the trial Court for the purpose of disposal of their bail applications expeditiously in view of the law laid down by the Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773.

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It is, therefore, directed that if the appellants appear/surrender before the trial Court within 20 days from today and moves an appropriate regular bail application, the trial Court shall be under obligation to dispose of the same with utmost expedition, after providing an opportunity of being heard to the parties, strictly in accordance with law laid down by the Hon'ble Supreme Court in Satender Kumar Antil (supra).

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Order Date :- 09.05.2023

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Praveen

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Digitally signed by :- PRAVEEN KUMAR High Court of Judicature at Allahabad

Ashish @ Chhotu and 4 Others v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Ashish @ Chhotu and 4 Others v. State of U.P. and Another

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