Sadab vs State of U.P. and Another

Heard Sri Safal Pandey, learned counsel for the revisionist, Sri Pradeep Kumar Tripathi, learned AGA for the State and perused the record. None is present for the informant even in revised call.

¶11

The present revision has been filed with the prayer to allow the application and set aside the impugned order dated 19.1.2024 passed by Juvenile Justice Board, Amroha in Case Crime No. 202 of 2022, under Sections 452, 376, 504, 506 IPC, Police Station-Naugawan Sadat, District-Amroha.

¶12

Learned counsel for the revisionist submitted that FIR of the present case was lodged on 24.6.2022 at about 10:24 hours against the revisionist and one another as Case Crime No. 202 of 2022 under Sections 452, 376, 504, 506 IPC, alleging that on 20.5.2022 at about 12:00 midnight, when informant was alone at her home, the revisionist and one another entered in her house after jumping over the boundary wall and on the gun point, co-accused Azam committed rape upon her against her wishes. It is further alleged that while they were going back, they threatened the victim to kill her, if she disclosed this incident to anyone and again on 6.6.2022 at about 3:30 hours, when informant/ victim was going to her paternal home along with his brother, on the way above accused persons intercepted her and started abusing and in the meantime, when brother-inlaw of the informant arrived at spot, they ran away threatening her. It is further mentioned in the FIR that above accused persons regularly behave indecently with the informant.

¶13

He further submitted that victim has been medically examined on 29.7.2022 and no internal or external injury was found in her person. Statements of the victim were recorded under Sections 161 Cr.P.C. and

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164 Cr.P.C., wherein she supported the version of FIR. Statement of Dr. Mamta Kumari, L.M.O., C.H.C., Joya, Amroha, who examined the victim, record by I.O., also reveals that no internal or external injury has been found on the person of the victim. It is next submitted that statements of some independent witnesses were recorded, wherein Dr. Bhavishya stated that revisionist is working in his health clinic and in the night of 20.5.2022, he was present at the clinic and put his signature in the staff register. The same version has been reiterated by witness Salman. He further submitted that after investigation, I.O. submitted that final report on 24.8.2022 having Final Report No. 56/2022 followed by a supplementary final report dated 23.11.2022.

¶17

He further submitted that after submission of final report, informant has filed protest petition on 3.4.2023, in the Court of F.T.C./ Civil Judge, S.D., Amroha, upon which, the Juvenile Justice Board, Amroha took the cognizance and summoned the revisionist vide order dated 19.1.2024, which is illegal and unsustainable as the final report was submitted after due investigation. It is also submitted that the FIR was lodged with a delay of about 35 days and the entire prosecution case is the result of village enmity.

¶18

Per contra, learned AGA opposed the prayer and submitted that after due consideration of facts and circumstances, the court concerned rejected the final report and rightly summoned the revisionist.

¶19

I have heard both the parties and perused the record of the case.

¶20

It is evident from the record that after submission of the final report, the protest petition was filed by O.P. No. 2, upon which the Juvenile Justice Board took cognizance and summoned the revisionist. The Board has recorded a finding that the statements of the victim consistently supports the prosecution case and that contradictions pointed out by the Investigating Officer are not of such nature as to discard the prosecution case. At the stage of summoning, the Court is only required to see whether a prima facie case made out or not.

¶21

Before arriving at a conclusion, it is appropriate to consider certain legal principles.

¶22

In case of Abhinandan Jha & others vs. Dinesh Mishra AIR 1968 SC 117 , the Apex Court has observed as follows:-

¶23

"....there is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still

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suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile police, to take cognizance, under Section 190(1)(c) Cr.P.C.. That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute. or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence. not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under s. 190(1) (c) Cr.P.C., on the ground that, after having due regard to the final report and the police records placed before him, be has reason to suspect that an offence has been committed."

¶27

11. In case of Minu Kumari and another vs. The State of Bihar and others AIR 2006 SC 1937 the Court has observed as follows:-

¶28

".....When a report forwarded by the police to the Magistrate under Section 173(2) 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 congnizance 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 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

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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 Carat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885) ]"

¶32

The following provisions have been given in the Code of Criminal Procedure regarding the investigation.

¶33

12.1. Section 169 Cr.P.C. Release of accused when evidence deficient-

¶34

If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient, evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.

¶35

12.2. Section 170(1) and (2) Cr.P.C. Cases to be sent to Magistrate when evidence is sufficient-

¶36

(1) If, upon an investigation under this Chapter, it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for the attendance from day to day before such Magistrate until otherwise directed.

¶37

(2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.

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12.3. Section 173(2) Cr.P.C. Report of police officer on completion of Investigation-

¶41

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

¶42

a. the names of the parties;

¶43

b. the nature of the information;

¶44

c. the names of the persons who appear to be acquainted with the circumstances of the case;

¶45

d. whether any offence appears to have been committed and, if so, by whom;

¶46

e. whether the accused has been arrested;

¶47

f. whether he has been released on his bond and, if so, whether with or without sureties;

¶48

g. whether he has been forwarded in custody under section 170;

¶49

h. whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the Indian Penal Code.

¶50

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given.

¶51

The legal position on this point is well settled the Magistrate/ Court is not bound in every case to accept the final report submitted by Investigating Officer. The Magistrate may, on the basis of material available on record, disagree with the conclusion of the Investigating Officer's report submitted under Section 173(2) Cr.P.C. and take cognizance of the offence, if there is prima facie case is made out.

¶52

The plea of alibi raised by the revisionist is a question of fact, which can only be adjudicated during trial. The burden to establish the plea of alibi lies upon the accused. At this stage no conclusive finding can be

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given only on the basis of statements record in support of plea of alibi.

¶56

In the present case, from the perusal of the case diary, statements of the victim recorded under Sections 161 and 164 Cr.P.C., and other material on record, this Court finds that the Juvenile Justice Board has rightly rejected the final report and no illegality, perversity or infirmity is found in the summoning order dated 19.01.2024.

¶57

Accordingly, the criminal revision lacks merit and is dismissed .

¶58

December 5, 2025 KK Patel

¶59

(Jai Prakash Tiwari,J.)

¶60

Digitally signed by :- KRISHN KANT PATEL High Court of Judicature at Allahabad

Sadab v. State of U.P. and Another

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Sadab v. State of U.P. and Another

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