HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 12 Reserved on 26.11.2012 U/[SECTION] No. - 2246 of 2007 Petitioner :- [ENTITY] And 2 Ors. Respondent :- [ENTITY]& Anothers. Petitioner Counsel :- [ENTITY],[ENTITY] Respondent Counsel :- Govt.Advocate,[ENTITY],[ENTITY] Hon'ble [ENTITY] (II),J.
(1) Heard, Sri [ENTITY] learned counsel for the petitioners and Sri [ENTITY], learned counsel for the opposite party no.2 and learned A.G.A. for the State.
(2) Present [CASE NUMBER] under [SECTION] [ACT] has been filed by the petitioners for quashing order dated 20.5.2006 and the summoning order dated 16.3.2007 passed by Judicial Magistrate-I, Lucknow.
(3) As far factual matrix of the case, it is to be noted that [ENTITY] was married with daughter of [ENTITY] namely [ENTITY] and due to some dispute applicant no.1 filed suit under [SECTION] of the [ACT] before the Family Judge, Lucknow, on that very day. [ENTITY] lodged first information report under [SECTION] under [SECTION], [SECTION], [SECTION] [ACT] and [SECTION]. P. S.- Mandion District-Lucknow.
(4) After investigation, the Investigating Officer after recording statement of Smt. [ENTITY] & Ors. submitted a final report. The informant [ENTITY] filed a protest petition along with an affidavit of Smt. [ENTITY] and on that application learned Trial Court vide order dated 20.5.2006 passed orders treating the protest petition as a complaint. After recording statement under [SECTION] [ACT] and the statement of witnesses under [SECTION] [ACT], the Trial Court passed summoning order under-[SECTION] [ACT] summoning the applicants No.1, 2 and 3 for facing trial under [SECTION], [SECTION] [ACT] and under [SECTION]. Feeling aggrieved the petitioner by means of this application under [SECTION] [ACT] prayed to quash the order dated 20.5.2006 and summoning order dated 16.3.2007 Annexure No.1 and Annexure No.2 of the application respectively.
(5) It has been submitted by learned counsel for the petitioners that learned Trial Court was wrong in treating the protest petition as a complaint case and also committed wrong in summoning the accused persons on the basis of evidence in the complaint case.
(6) Refuting the arguments learned counsel for the respondent no.2 argued that Trial Court has every right to treat the protest petition as complaint case and summoning the accused persons if there is a prima facie case against the accused persons.
(7) Learned counsel for the petitioner relied upon the case law M/s [PRECEDENT]. Learned counsel has relied upon following observation of the Apex Court which is reproduced below:-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
(8) In this case, firstly it has to be seen as to whether the trial court has powers to treat the protest petition as a complaint case or not.
(9) In the case of [PRECEDENT], Apex Court has held that when a Magistrate notice a negative report, he should choose between one of the four courses:
i) to except the report and thereafter the proceedings, ii) to direct further investigation to be made by the police, iii) to investigate himself or refer for the investigation to be made by another Magistrate under 159 [ACT], iv) to take cognizance of the offence under [SECTION] as a private complaint when the materials are sufficient in his opinion.
(10) The Apex Court in [PRECEDENT] has held that on receiving final report it was not within the powers of the Magistrate to direct the police to submit a charge-sheet but it is open to him to agree or disagree with the police report. If he agrees that there is no case made out for issuing process, he may accept the report and drop the proceedings. He may come to the conclusion that further investigation is necessary in that event he may pass an order to that effect. If ultimately the Magistrate is of the opinion that the facts set out in the police report constitute an offence, he can take cognizance of the offence, notwithstanding the contrary opinion, expressed in the police report. It was observed therein that the Magistrate in that event could take cognizance under [SECTION] of the Code. (The reference to [SECTION] was wrong and this has been pointed out in a later decision of Apex Court in [PRECEDENT].) (11) In [PRECEDENT] (supra) it was held by the Supreme Court that the Magistrate is not bound to accept the opinion of the Police regarding the credibility of the witnesses expressed in the police report submitted to the Magistrate under [SECTION], [ACT] The Magistrate may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. In that case it was observed : "If a complaint states the relevant facts in his compliant and alleges that the accused is guilty of an offence under [SECTION] [ACT] the Magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under [SECTION], [ACT] only and he may take cognizance of an offence under [SECTION] instead of [SECTION]. Similarly if an police report mentions that half a dozen persons examined by them claim to be eye-witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statement of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police.
(12) In another decision in [PRECEDENT], it was held as under:
"The position is, therefore, now well settled that upon receipt of a police report under [SECTION] a Magistrate is entitled to take cognizance of an offence under [SECTION] 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] 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 conclusions arrived at by the investigation 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 [SECTION] 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 [SECTION] and [SECTION] of the Code for taking cognizance of a case under [SECTION] though it is open to him to act under [SECTION] or [SECTION] also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him."
(13) In the case of [PRECEDENT], it was held that if the police, after making an investigation, sent a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of the case under [SECTION] on the basis of material collected during investigation and issue process or in the alternative he could take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he was of opinion that the case should be proceeded with.
(14) 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] 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 he 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 [SECTION] and [SECTION] [ACT] and thereafter decide whether complaint should be dismissed or process should be issued."
(15) In view of above, decisions of Apex Court, it is clear that Magistrate has every right to treat the protest petition as a complaint case.
(16) It was argued by learned counsel for the petitioner that the Magistrate has held that there is no defect in the investigation done by the investigation officer but in the interest of justice, informant be permitted an opportunity to establish his case this procedure is wrong.
(17) Argument of the petitioners' counsel has no force. Perusal of the impugned order it reveals that the protest petition was accompanied with affidavit of [ENTITY]. In view of this, when there was an affidavit of [ENTITY] the Magistrate was bound to treat the protest petition as a complaint case and there is nothing wrong in the impugned order dated 20.5.2006.
(18) As regards, second order is concerned that order has been passed under [SECTION] [ACT] after recording statement of informant and two witnesses [ENTITY] (wife) of applicant no.1 and [ENTITY] as P.W. 1 and P.W. 2 respectively under [SECTION] [ACT] The magistrate has found that from the evidence a prima facie case is made out and hence applicants are liable to be summoned.
(19) In the decision relied upon by the petitioner himself, it is clear that the order of the Magistrate, summoning the accused should reflect that he has applied his mind to the facts of the case and the law applicable thereto.
(20) The wording of [SECTION] [ACT] is also important and is reproduced below:-
"[SECTION] If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be -
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction."
(21) In the case of [PRECEDENT] it has been held that the expression in the opinion of a Magistrate means that the Magistrate has to merely form opinion as to the sufficiency of grounds for producing against the accused persons. It does not require him to record any reason for his so doing.
(22) In the case of [PRECEDENT] page 522. It has been held that the legislature has stressed, the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons.
(23) In the case of [PRECEDENT] page 1430, it has been held by the Hon'ble Apex Court the test was whether there was sufficient ground of proceeding and not whether there was sufficient ground in conviction and Apex Court has observed that where there was prima facie evidence, even though against the present charge, accused might have a defence. The matter had to be left to be decided by the Appropriate Forum at the appropriate stage and issue of a process cannot be refused. Unless, therefore, the Magistrate finds that the evidence laid before him is self-directory or intrinsically, untrustworthy, the process cannot be refused if that evidence makes out a prima facie case. The same view has been reiterated by Apex Court in the case of [PRECEDENT].
(24) In the instant case, the Magistrate has found that a prima facie case is made out hence he has issued summons to the accused persons and there is no illegality in it as the Smt. [ENTITY] has supported the complaint version in her statement under [SECTION] [ACT]
(25) As a result, the impugned order dated 16.3.2007 is also not liable to be quashed as a consequence, the writ petition is liable to be dismissed.
(26) From the above discussion, it is clear that Magistrate is not required to give detail reason he has only to be satisfied that there is a prima facie case against the accused persons to proceed.
(27) In the case of [PRECEDENT] it has been held that revisional court may have the power to correct any error in the order passed by the Magistrate. But it will be beyond its power and jurisdiction to reassess the evidence and so on such reassessment to arrive at a finding which is at variance with the finding recorded by the Magistrate.
(28) Accordingly, this application under [SECTION] [ACT] has no force and is liable to be rejected.
(29) The writ petition is hereby rejected accordingly.
[[ENTITY] (II),J.] Order Date :- 30th November, 2012 Subodh/-