HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 22.04.2019 Delivered on 18.10.2019 Court No. - 34 Case :- APPLICATION U/S 482 No. - 7020 of 2003 Applicant :- [ENTITY] Opposite Party :- State Of U.P. And Another Counsel for Applicant :- [ENTITY] Counsel for Opposite Party :- Govt. Advocate,[ENTITY] Hon'ble [ENTITY],J.
1. Heard Sri [ENTITY], learned counsel for the applicant and Sri [ENTITY], learned A. G. A. for the State of U.P.
2. By means of this application filed under [SECTION] of [ACT] (hereinafter referred to as "[ACT]"), applicant [ENTITY] has prayed that entire proceedings of [CASE NUMBER] under [SECTION] [ACT], Police Station-Chakeri, District-Kanpur Nagar pending in the Court of Chief Metropolitan Magistrate, Kanpur Nagar, be quashed.
3. Facts in brief giving rise to this application are that respondent-2, [ENTITY] (hereinafter referred to as "Informant") lodged a report at Police Station-Chakeri, District-Kanpur Nagar as [CASE NUMBER] ([CASE NUMBER]) under [SECTION] [ACT], on 15.10.1994 at 9.30 P.M. stating that at 4.30 P.M., on the same day i.e. 15.10.1994, he received a telephonic message from servant from Farm House that his brother [ENTITY], who had gone to said Farm House, situate at Daheli Sujanpur, has received gun shot injury. Immediately other brothers of Informant rushed to Farm House and brought injured brother to LLR Hospital i.e. Hailet Hospital, Kanpur. After receiving information from hospital, Informant also reached there. Doctors directed to arrange four units of blood, whereupon Informant and all family members went around for arranging blood. In the meantime, doctor repeatedly enquired from injured [ENTITY] about incident, whereupon in low voice (whispering) he said that at 4.30 P.M. he was shot by his enemy. He died at 8.40 P.M. [ENTITY], another brother of Informant, went unconscious and after making arrangement of his primary care, Informant came to lodge report at Police Station.
4. Investigation commenced by Station House Officer (hereinafter referred to as "S.H.O.") of Police Station-Chakeri. During investigation on 24.10.1994, Investigating Officer (hereinafter referred to as "I.O.") received an affidavit from Court of Chief Metropolitan Magistrate, Kanpur Nagar wherein deponent had stated that a dying declaration of deceased was recorded by a doctor of hospital and sent by post to Magistrate.
5. When investigation was going on, Informant made a representation to State Government for change of Investigating Agency. Thereupon investigation was transferred to Crime-Branch, Crime Investigation Department (hereinafter referred to as "CB CID"), which commenced investigation on 19.12.1994 and submitted charge sheet in the Court of Magistrate, wherein [ENTITY], [ENTITY] and [ENTITY] were shown as accused for offence under [SECTION] [ACT]. Magistrate by order dated 04.08.1998 took cognizance of charge sheet and registered [CASE NUMBER] under [SECTION] [ACT].
6. Applicant, thereafter, approached higher authorities in State Government stating that no proper investigation was made by I.O. or CB CID, whereupon State Government directed I. O. of CIS Branch, CB CID, Lucknow, to seek formal permission from the Court and conduct further investigation. Consequently, further investigation was conducted by CIS Branch, CB CID, Lucknow, after seeking formal permission of Court and it submitted conclusion of further enquiry recording that [ENTITY] and [ENTITY] have been falsely implicated and only a case under [SECTION] [ACT] is made out against [ENTITY].
7. Thereafter, applicant filed an application dated 17.01.2003 for recall of order passed by Magistrate taking cognizance of charge sheet against three accused including applicants. Aforesaid application was rejected by Chief Metropolitan Magistrate, Kanpur Nagar holding that cognizance was taken on charge sheet submitted by prosecution under [SECTION] [ACT] and case is cognizable by Sessions Court; and, Magistrate has only power of committal to Sessions Court; accused have not appeared in the case, therefore, application filed by accused is beyond jurisdiction of Magistrate. It is at this stage that present application has been filed challenging the entire proceedings.
8. It is contended that the view taken by Magistrate that he has no power of review of order of cognizance, is illegal, inasmuch as, once Magistrate permitted further investigation, and material collected in such investigation has been brought before Magistrate, it was incumbent upon him to have a re-look of the matter and pass appropriate order in the light of subsequent investigation and this is within the precinct of [SECTION] [ACT]; such an order will not amount to review of earlier order; first order taking cognizance by Magistrate is illegal, inasmuch as, he has not applied its mind to material collected by police and in absence of any forensic examination of sole piece of evidence i.e. dying declaration, charge sheet submitted by police and cognizance taken thereupon by Magistrate, were all illegal. Reliance is placed by learned counsel for applicant on [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
9. In order to examine above submissions, it would be appropriate to have a re-look of scheme of [ACT] in such matters. [SECTION] [ACT] provides that as soon as investigation is completed, officer in charge of police station shall forward to the Magistrate, empowered to take cognizance of the offence on a police report, a report in the form prescribed by State Government giving details as mentioned [SECTION] [ACT] When report is so submitted and states that allegations on the complaint were found proved in investigation, Court has to decide whether cognizance of offence is to be taken or not on the strength of report. If it accepts charge sheet and registers the case, Magistrate would summon the accused persons. When accused persons appeared and case is triable by Court of Sessions, Magistrate under [SECTION] [ACT] shall commit the case to the Court of Sessions for trial.
10. Upto the stage of taking cognizance, accused persons have no right to be heard or place their defence. When accused is summoned and appears, next course for Magistrate is to commit the case to the Court of Sessions if offence is triable exclusively by Sessions Court and accused has right to be heard by Sessions Court for discharge.
11. In the present case, charge sheet submitted by police was accepted by Magistrate and it directed to register the case and took cognizance thereof. Magistrate did not find any reason to direct for further investigation. Since, accused had no right to be heard till this stage by Magistrate, as per own case of applicant, he approached State Government and authorities, whereupon State Government issued direction for further investigation and it was complied by Deputy Director General, Crime Branch, CID, Lucknow, as is evident from Annexure 4 to the affidavit accompanying application. Further investigation was made by another officer and he submitted report to Magistrate. Whether, for further investigation, formal permission of Magistrate was taken or not, is not evident from record as no such order is on record.
12. But in view of [SECTION] [ACT] at this stage, I have no manner of doubt that police had power for making further investigation and not fresh investigation or re-investigation.
13. The only question up for consideration is "whether such report submitted by police in purported exercise of power under [SECTION] [ACT] is bound to be considered by Magistrate to re-look at its earlier order of taking cognizance by accepting charge sheet and registering the case or it has to be considered by appropriate Court where the matter is sent for trial".
14. In my view, once a case is registered by Magistrate after receiving charge sheet and accepting the same, thereafter if police has made any further investigation and submitted additional report, there is no provision empowering Magistrate to re-consider its order of taking cognizance on the charge sheet and accepting the same it has registered the case. Such report can be examined by appropriate Court when trial commences and in tge present case, applicant can press for discharge under [SECTION] [ACT] before Sessions Court also. Further report submitted by police has to be considered on various aspects, whether the alleged further enquiry infact is only a further enquiry or it is a re-investigation in the matter, which was not permissible even under [SECTION] [ACT] and also the fact that earlier evidence relied by police and submission of charge sheet, can be dislodged on the basis of subsequent report wherein investigation has been made at the instance of accused persons. None of the authorities cited by learned counsel for applicants noticed above have held that charge sheet is submitted and accepted by Magistrate and cognizance is taken, thereafter if police made further investigation and submitted report, Magistrate is obliged to review or recall or re-consider its earlier order. On this aspect, I do not find any of the authorities cited above throw light, hence same would not help the applicant. Basically the issue considered in all these authorities is whether Magistrate has power to order for 'further investigation' though under [SECTION] [ACT], such power has been bestowed to police and not Magistrate. Courts have taken a view that satisfying requisite conditions, police has power for further investigation and not fresh investigation or de novo investigation. In certain circumstances, even Magistrate can pass such an order and thereafter further report received can be looked into by Magistrate to form an opinion whether cognizance of offence must be taken or not. But none of aforesaid authorities states that once Magistrate has accepted charge sheet and registered the case and taken cognizance, issued summon to accused persons, still he is obliged to re-consider his earlier order, if police proceeds for further investigation and submit such report.
15. In the present case, Magistrate has to consider the stage of proceedings when further report has been submitted. The Magistrate was seized with the stage of committal since offence under [SECTION] [ACT] levelled in the charge sheet accepted by Magistrate was exclusively triable by Court of Sessions and, therefore, Magistrate has no authority to drop proceedings by entertaining application of accused at a stage when accused has not even appeared before Court. Such power of review is not provided in the Statute.
16. Accused, in my view, has enough opportunity to take appropriate steps before Trial Court which is fully competent to look into the matter and discharge applicant but at the stage, order dated 01.08.2003 has been passed by Magistrate rejecting application of applicant for review of earlier order passed by it, cannot be said to be faulty in any manner.
17. Application has no merit and it is dismissed accordingly. Interim order, if any, stands vacated.
Order Date : 18.10.2019 [ENTITY]