Allowed

Gyanendra Rai and Another v. State of U.P. and Another

Allahabad HC23 Jul 2024CRLR/1251/2024

Case brief

AI extract

What is this about?

In a revision challenging a summons order for rape, this Court clarified that a Magistrate cannot ignore a final police report, reject it based solely on a protest petition and affidavits, and summon accused under Section 190(1)(b) CrPC without following Chapter XV procedures.

What did the court decide?

Impugned order dated 23.02.2024 setting aside police report and summoning Sitaram set aside; matter remitted to Court below for fresh order.

Gyanendra Rai and Another vs State of U.P… — Civil Procedure and Limitation | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:118564

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Reserved on: 15.05.2024

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Delivered on: 23.07.2024

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Court No. - 64

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Case :- CRIMINAL REVISION No. - 1251 of 2024

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Revisionist :- Gyanendra Rai And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Alok Ranjan Mishra,Sr. Advocate Counsel for Opposite Party :- G.A.,Santosh Kumar Rai

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Hon'ble Rajeev Misra,J.

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Heard Mr. Gopal S. Chatruvedi, the learned senior counsel assisted by Mr. Alok Ranjan Mishra, the learned counsel for revisionists, the learned A.G.A. for State-opposite party 1 and Mr. Santosh Kumar Rai, the learned counsel representing first informant/opposite party 2.

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Perused the record.

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This criminal revision has been filed challenging the order dated 23.02.2024, passed by Chief Judicial Magistrate, Mau in Criminal Misc. Case (R) No.130 of 2023 (Savita Gupta Vs. Gyanendra Rai), arising out of Case Crime No.08 of 2023, under Sections 376-D, 506 IPC, police station Sarai Lakhansi, district Mau, whereby the protest petition filed by the first informant/prosecutrix against police report dated 25.06.2023 under Section 173 (2) CrPC (Final Report) submitted by Investigating Officer has been allowed. The police report dated 01.02.2023 was set aside. Consequently, Court below took cognizance and summoned the revisionists under Sections 376-D and 506 IPC to face trial.

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Record shows that an incident is alleged to have occurred on 16.01.2022. It is the case of first informant that the first information report in respect of aforesaid occurrence was not registered. Accordingly, an application dated 20.09.2022 under Section 156 (3) CrPC was filed by first informant/opposite party 2. The same was registered as Criminal Misc. Case No. (R)1136 of 2022 (Savita Gupta Vs. Gyanendra Rai and another). On the said application, the police of concerned police station submitted a report dated 23.01.2023. Ultimately, the Judicial Magistrate (CAW)/F.T.C., Mau allowed the aforesaid application under Section 156 (3) CrPC vide order dated 06.01.2023.

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Accordingly, in compliance of above order dated 06.01.2023, a first information report dated 10.01.2023 came to be registered as Case Crime No.0008 of 2023, under Sections 376-D, 506 IPC, police station Sarai Lakhansi, district Mau. In the aforesaid first information report, the prosecutrix Savita Gupta has been shown as the first informant whereas, two persons, namely, Gyanendra Rai and Anjani Rai, the revisionists (herein) have been nominated as named accused.

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The gravamen of the allegations made in the first information report dated 10.01.2023 is to the effect that named accused forcibly and deliberately dislodged the modesty of the prosecutrix by committing rape upon her.

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After above mentioned first information report was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. The prosecutrix was requested for her internal medication examination on 21.02.2023 but the same was refused by her. Thereafter, the statement of the prosecutrix was recorded by Investigating Officer under Section 161 CrPC on 21.01.2023. Copy of the same is on record as Annexure-'4' to the affidavit filed in support of present criminal revision. The prosecutrix in her aforesaid

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statement has fully supported the first information report. This was followed by the statement of the prosecutrix under Section 164 CrPC, which was recorded on 23.01.2023. Copy of same is on record as Annexure-'5' to the affidavit filed in support of present criminal revision. The prosecutrix in her aforesaid statement has rejoined her previous statement under Section 161 CrPC. Thereafter, Investigating Officer in order to ascertain the veracity of the allegations made in the FIR and also the complicity of named accused in the crime in question, examined various other witnesses under Section 161 CrPC. On the basis of above and other material collected by him during course of investigation as well as the mitigating circumstances that emerged during course of investigation, he came to the conclusion that no offence as alleged in the first information report is made out. He, accordingly, opined to submit a first report. Accordingly, Investigating Officer submitted the police report dated 01.02.2023, under Section 173 (2) CrPC (Final Report).

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Feeling aggrieved by the aforementioned police report dated 01.02.2023, the first informant/prosecutrix filed a protest petition dated 20.04.2023. The same is in consonance with the judgement of the Supreme Court in Bhagwant Singh Vs. Commissioner of Police And Another, (1985) 2 SCC 537 .

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The Chief Judicial Magistrate, Mau considered the protest petition filed by first informant/prosecutrix in the light of the papers accompanying police report dated 01.02.2023. Upon examination of the same in the light of the averments made in the protest petition ultimately, court below came to the conclusion that as per the material on record the final report cannot be sustained. Accordingly, the court below, by means of an order dated 23.02.2024, set aside the aforementioned police report and allowed the protest petition filed by the prosecutrix. Consequently, court below took cognizance of the offence under Sections 376-D and 506 IPC and summoned the named accused i.e. the revisionists (herein) to face trial. It

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was also observed by the court below that the consequential case shall proceed as a State Case. It is thus apparent that Court below passed the order dated 23.02.2024 in exercise of jurisdiction under Section 190(1)(b) Cr.P.C.

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Thus, feeling aggrieved by the above order dated 23.02.2024, the revisionists who have been summoned by court below, have now approached this Court be means of present criminal revision.

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Mr. Gopal S. Chaturvedi, the learned senior counsel assisted by Mr. Alok Ranjan Mishra, the learned counsel for revisionists, submits that the order impugned in present criminal revision is manifestly illegal and therefore liable to be set aside by this Court. In support of the aforesaid solitary submission, urged by him in challenge to the order impugned, the learned senior counsel submits that there is absolutely no evidence in the papers accompanying the police report so as to establish the criminality alleged against the revisionists/accused in the first information report giving rise to present criminal proceeding. The various witnesses examined under Section 161 CrPC, whose names have been brought on record clearly belie the prosecution story as unfolded in the first information report. The innocence of the revisionist is further established from the CDR reports of the revisionist and also the fact that there is no medical evidence to support the ocular version of the occurrence. He thus contends that the concerned Magistrate has therefore erred in law and fact in taking cognizance and summoning the revisionists. On the above premise, he thus concludes that the order impugned cannot be sustained and is therefore liable to be set aside by this Court.

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Per contra, the learned A.G.A. for State-opposite party 1 and Mr. Santosh Kumar Rai, the learned counsel representing opposite party 2 have vehemently opposed the present criminal revision. They submit that the order impugned in present criminal revision is perfectly just and legal

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and, therefore, the same is not liable to be interfered with by this Court. The court below while recording the conclusion as drawn in the order impugned has relied upon the statements of the prosecutrix recorded under Section 161/164 CrPC, wherein the prosecutrix has fully supported the first information report. On the above premise, they therefore contend that in view of above the present case is not a case of no evidence and therefore, the third principle of law laid down by the Apex Court in R.P. Kapur Vs. The State of Punjab AIR 1960 SC 866 i.e. quashing the proceedings, in case of no evidence, shall not be applicable in the present case. In view of above, no good ground for interference by this Court exists. As such, the present criminal revision is liable to be dismissed by this Court.

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Having heard Mr. Gopal S. Chaturvedi, the learned senior counsel assisted by Mr. Alok Ranjan Mishra, the learned counsel for revisionists, the learned A.G.A. for State-opposite party 1, Mr. Santosh Kumar Rai, the learned counsel representing opposite party 2 and upon perusal of record this Court finds that in the light of the submissions and countersubmissions urged before this Court, the following two questions arise for consideration in present criminal revision : firstly, whether a Magistrate while exercising jurisdiction under Section 190 (1)(b) CrPC is bound to accept the police report or he can take a decision otherwise; and secondly, whether the credibility of the witnesses examined under Section 161 CrPC can be doubted at the stage of considering the police report submitted under Section 173(2) Cr.P.C.

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So far as issue no.1 is concerned, the same need not detain this Court for long as, same stands settled by the judgement of the Apex Court in Vishnu Kumar Tiwari Vs. State of U.P. and Another, (2019) 8 SCC 27 , wherein the Apex Court has laid down various options that are available to the concerned Magistrate at the time of considering the police report submitted by the Investigating Officer, under Section 173(2) Cr.P.C..

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Reference may also be made to the judgement rendered by a learned single Judge of this Court in Hari Ram Vs. State of U.P. and Another, 2016 ADJ Online, 0185 (Criminal Revision No.695 of 2001), wherein Court has also dealt with the aforesaid aspect in detail. Paragraphs 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the aforesaid report are relevant for the controversy in hand, which are, accordingly, extracted herein below:-

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"19. This Court has also followed a similar line and some authorities, relevant in this regard, may be noticed for reference.

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20. In Pakhando and others Vs. State of U.P. (supra), 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 suspicion to justify forwarding of accused for trial and submits final report for dropping proceedings, Magistrate shall have following four courses and may adopt any one of them:

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(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;

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(II) He may take cognizance under Section 190(I)(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

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(III) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

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(IV) He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(I)(b) upon the original complaint or protest petition treating the same as complaint and

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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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21. Thus the "material" which can be examined by Magistrate when Police submitted final report and upon notice issued to complainant, Protest Petition is filed along with some material by complainant, is confined to investigation only. When matter has been investigated by Police after registering a report, Magistrate obviously is not proceeding according to procedure prescribed in Chapter XV. I find that it would not be appropriate for Magistrate not to follow procedure under Section 200 and 202 Cr.P.C. but straightway relying on affidavits filed before him by complainant along with Protest Petition, take cognizance and summon accused after rejecting Police Report. This is not legal and permissible.

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22. In Mohammad Yusuf Vs. State of U.P. 2007 (9) ADJ 294, Police submitted final report which was not accepted by Magistrate, not on the basis of material collected by Police, but, relying on Protest Petition and accompanying affidavit Magistrate issued process. Court disapproved the aforesaid procedure adopted by Magistrate and said:

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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

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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." (emphasis added)

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23. 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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24. Court further held:

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"If after taking evidence under section 200 and 202 Cr.P.C., the magistrate decides to take cognizance against the accused persons, final report has to be rejected, but in any case, cognizance cannot be taken merely on the basis of affidavits or other material filed by the complainant in support of the protest petition against final report without following the procedure laid down under Chapter XV Cr.P.C., if the material in the case diary is not sufficient to take cognizance."

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(emphasis added)

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25. In Mitrasen Yadav Vs. State of U.P. 2010 (69) ACC 540, Court said that on the basis of Protest Petition and documents filed therewith, no cognizance under Section 190(1)(b) Cr.P.C. can be taken.

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26. In Criminal Revision No. 1601 of 2015 (Mukeem and 2 others Vs. State of U.P. and another) decided on 07.08.2015, Court while deprecating procedure followed by Magistrate by relying on Protest Petition and its documents, without following procedure of complaint, said:

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"The impugned order shows that the Magistrate summoned accused persons presuming that oral evidence on behalf of first informant was adduced on protest petition, which is possible only when the protest petition was ordered to be treated as a complaint. The record shows that neither protest petition was ordered to be registered as complaint nor any oral evidence of the witnesses was recorded. Summoning of the accused persons on the basis of the oral evidence indicates that the Magistrate was satisfied with the fact that in evidence collected by the I.O, there was no sufficient material for taking cognizance. The learned Magistrate has also observed that the I.O. has committed a mistake in not recording the evidence of other witnesses. Summoning is also based on facts mentioned in the protest petition and documentary evidence, as mentioned in the order impugned '' प्रस्तुत प्रोटेस्ट प्रार्थ�नापत्र व अभि�लेखीय साक्ष्य के आधार पर ^^ which is erroneous in view of the law cited above."

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(emphasis added)

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27. 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. But in the facts of this case the Magistrate while rejecting the final report has also taken into consideration the

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affidavits filed along with protest petition and this approach of the Magistrate was not in accordance with law." (emphasis added)

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28. Looking to exposition of law, discussed above, I find that in the present case Magistrate has not referred to any material placed before him or collected by Investigating Officer. Instead it has rejected final report on the basis of facts stated in Protest Petition and thereafter relying on the affidavits filed before him along with Protest Petition, proceeded to issue notice. The affidavits would not amount to a statement recorded by Magistrate under Section 200 and 202 Cr.P.C. Magistrate has not given any reason for rejecting Police report and nothing has been said in this regard except that in the light of affidavits placed before him along with Protest Petition, he finds that final report is liable to be rejected and accused would be summoned. This approach on the part of Magistrate, I find contrary to what has been laid down in the above authorities and the same cannot be sustained."

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However, in the case in hand, the Court finds that the Investigating Officer, upon completion of investigation of concerned case crime number, has submitted the police report dated 01.02.2023. The named accused were not charge sheeted under any Section of IPC.

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It is apposite to mention here that the terms charge sheet and final report have not been defined in the Code i.e. Cr.P.C.

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The issue that arises for consideration on the facts as noted above is whether once the Magistrate has set aside the police report submitted by the Investigating Officer, yet he could take cognizance in exercise of jurisdiction under Section 190(1)(b) Cr.P.C.

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The aforesaid issue that has emerged in present criminal revision is no longer res-integra and stands concluded by a judgment of this Court in Application U/s 482 Cr.P.C. No. 8563 of 2023 (Smt. Bhuri Vs. State of

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U.P. and Another) decided on 15.03.2023. Since the judgment is a short one, therefore, the same is reproduced in its entirety:-

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“1. Heard Mr. Manu Srivastava, the learned counsel for applicant and the learned A.G.A. for State.

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2. Challenge in this application under Section 482 Cr.P.C. is to the Summoning Order dated 19.08.2020 passed by Additional Sessions Judge/Special Judge (POCSO Act), Bulandshahar in Special Case No. 1148 of 2020 (Shahalam Vs. Bhura) arising out of case crime no. 50 of 2020 under Section 376 IPC and Section 3/4 POCSO Act, Police Station-Kotwali, District-Bulandshahar, whereby court below has rejected the police report dated 16.02.2020 submitted under Section 173 (2) Cr.P.C. (final report) and simultaneously summoned the applicant by directing that consequential case shall proceed as a State case.

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3. Learned counsel for applicant contends that order impugned in present application is manifestly illegal and without jurisdictiont. Admittedly, the court below while passing the order impugned dated 19.08.2020 has exercised jurisdiction under Section 190 (1) (b) Cr.P.C. Once the Police report submitted under section 173 (2) Cr.P.C. was itself rejected by Court below then there was no police report before Court below to taken cognizance under Section 190 (1) (b) Cr.P.C. and proceed with the matter as State case. Proper course for the Court below was to disapprove the Police report (aswikar) and thereafter take cognizance on the basis of police report. He therefore submits that order impugned in present application dated 19.08.2020 cannot be sustained and is therefore liable to be quashed by this Court.

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4. Per contra, the learned A.G.A for State does not oppose the present application.

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5. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that once the Magistrate has rejected the police report (final report) then he could not have taken cognizance upon aforesaid Police report. The proper course of action open to the Magistrate was to disapprove (Aswikar) the police report and proceed with the matter as a State case by exercising jurisdiction under Section 190(1) (b) Cr.P.C. This having not been done, the Impugned order is illegal and perverse. Consequently the same is liable to be quashed by this Court.

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6. In view of above, THE present application succeeds and is liable to be allowed.

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7. It is accordingly allowed.

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8. Summoning Order dated 19.08.32020 passed by District and Additional Sessions Judge/Special Judge (POCSO Act), Bulandshahar in Special Case No. 1148 of 2020 (Shahalam Vs. Bhura) arising out of case crime no. 50 of 2020 under Section 376 IPC and Section 3/4 POCSO Act, Police Station-Kotwali, District-Bulandshahar is hereby quashed.

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9. Matter is remitted to court below for decision afresh in the light of observantions made herein above.”

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In view of above, the issue no. 2 that has arisen does not require an adjudication by this Court.

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In view of the discussion made above, the Court below, while passing the order impugned, has thus committed a jurisdiction error. Furthermore, Court below has exercises it’s jurisdiction with material irregularity as noted herein above, which has vitiated the order impugned warranting interference by this Court.

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As a result, present criminal revision succeeds and is liable to be allowed.

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It is, accordingly, allowed .

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The impugned order dated 23.02.2024, passed by Chief Judicial Magistrate, Mau in Criminal Misc. Case (R) No.130 of 2023 (Savita Gupta Vs. Gyanendra Rai), arising out of Case Crime No.08 of 2023, under Sections 376-D, 506 IPC, Police Station-Sarai Lakhansi, DistrictMau, in so far as it relates to revisionist- Sitaram is, hereby, set aside.

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The matter shall stand remitted to Court below, who shall pass a fresh order after taking into consideration the observations made herein above. The necessary exercise shall be undertaken by Court below within a period of 2 months from the date of production of a certified copy of this order.

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Considering the facts and circumstances of the case, the cost is made easy.

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Order Date :- 23.07.2024 Vinay

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

Gyanendra Rai and Another v. State of U.P. and Another

Case brief

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Gyanendra Rai and Another v. State of U.P. and Another

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