IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Stay Application No.756 of 2010 In Criminal Misc. Application No.698 of 2010 (U/s 482 of Cr.P.C.) Hamid and four others …………Applicant Versus State of Uttarakhand and another …………Respondents Dated: October 26, 2010 HON. DHARAM VEER, J. Heard Mohd. Azim, Advocate for the applicants and Mr. M.A. Khan, Brief Holder for the State. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the applicants have sought quashing of summoning order dated 19.4.2010 passed by Judicial Magistrate, Kashipur in Criminal Case No.1671 of 2010, relating to offences punishable under Sections 323, 324, 504 and 506 of The Indian Penal Code, 1860 (for short, IPC). Brief facts of the case are that respondent no.2 Smt. Khushnabi moved an application u/s 156(3) Cr.P.C. and got lodged a first information report at P.S. Kunda, District Udham Singh under Sections 147, 148, 452, 307, 504, 506 and 392 of IPC against the applicants. After lodging of the FIR, the matter was investigated and on completion of investigation, the I.O. submitted final report in the matter. Against the final report, respondent no.2 filed a protest petition. While accepting the protest petition, learned Magistrate rejected the final report and registered the case as complaint case. Thereafter the statement of the complainant was recorded u/s 200 Cr.P.C. 2 and u/s 202 Cr.P.C. statements of witnesses, namely, Shamsher, Fakira and Mumtaz were recorded. After hearing learned counsel for the complainant and perusing the material available, learned Judicial Magistrate, Kashipur, vide order dated 19.4.2010 summoned the applicants under Sections 323, 324, 504 and 506 IPC. Against the summoning order dated 19.4.2010, the applicants have preferred the present application u/s 482 Cr.P.C. before this Court. Learned counsel for the applicants argued that the order dated 19.4.2010 passed by Judicial Magistrate, Kashipur is not correct and is not sustainable in the eye of law. I do find force in the argument advanced by learned counsel for the applicants. It is settled law that when a report is placed before the Magistrate, he has the option of adopting one of the three courses 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). In a judgment rendered by Hon’ble Apex Court in the case of “Minu Kumari & another v. State of Bihar & others” reported in (2006) 2 SCC (Cri.) 310, it has been held in para 11 of the said judgment that:- “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 again has 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 a police report under Section 173(2) a Magistrate is 3 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 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 India Carat (P) Ltd. v. State of Karnataka)” In view of the above quoted judgment, it is clear that the three courses are open before the Magistrate (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). In the present case, learned J.M. Kashipur by adopting second course, proceeded to summon the applicants u/Ss 323, 324, 504 and 506 of IPC. Hence, in view of judgment of Hon’ble Apex Court in case of Minu Kumar (Supra), the order passed by the learned Chief Judicial Magistrate appears to be perfectly justified and as per law. For the reasons recorded above, there is no force in the application. The C482 application is devoid of merit and is hereby dismissed. (Stay Application No.756 of 2010 stands dismissed accordingly). (Dharam Veer, J.) 26.10.2010 RG