Suresh Kumar Gupta ORDER
Suresh Kumar Gupta, J.
1. This application under Section 482 Cr.P.C. has been filed by the applicant Smt. Shakuntala Tyagi with the request to quash the summoning order dated 01.10.2002 passed by learned Judicial Magistrate, Garhmukteshwar, Ghaziabad and quash the further proceedings of Case Crime No. 358 of 2000 under Section 409 I.P.C. Police Station-Garhmukteshwar, District-Ghaziabad in (Kanta Prasad versus Smt. Shakuntala Tyagi) pending in the Court of Judicial Magistrate Garhmukteshwar, Ghaziabad.
2. Learned counsel for the applicant requested to accept the final report dated 22.02.2001 submitted by Investigating Officer and stay the entire proceedings in Case Crime No. 358 of 2000 under Section 409 I.P.C.
3. I have heard the learned counsel for the applicant and learned A.G.A.
4. The brief facts of the case are that the institution as Adarsh Kanya Inter College managed by Management Committee where applicant was working as a permanent principal of the aforesaid college.
5. Opposite party no. 2 who was neither the member of the Committee of Management nor even the member of General body of the said institution made a report to the Police Station against the applicant but the police did not find any prima facie case against the applicant and did not register the case but the opposite party no. 2 moved an application under Section 156(3) Cr.P.C. in court. On the basis of this application Judicial Magistrate Garhmukteshwar, directed the police to register and investigate the case. As per direction of the Magistrate a case was registered under Section 409 I.P.C. in P.S. Garhmukteshwar. After investigation the case under Section 409 I.P.C. Investigating Officer submitted that as no evidence against the applicant and submitted the final report before the learned court concerned under Section 409 I.P.C.
6. Investigating Officer submitted his final report that 35,000/- Rs. of Sanchayika amount as collected by college student has been used for construction of School Baramda and the Committee Management of Institution passed the resolution for utilizing of the said amount in construction of School Baramda.
7. Opposite party no. 2 filed protest petition on 22.04.2002 along with affidavit and another affidavit of Sri Krishna Pal Singh before the Judicial Magistrate with protest petition.
8. Learned Judicial Magistrate accepted the protest petition and has summoned the petitioner for appearance before the Court. Applicant stated that no evidence under Section 409 I.P.C. is made out against the applicant and prayed before the Court to quash the summoning order dated 21.10.2002 passed by Judicial Magistrate, Garhmukteshwar, District-Ghaziabad. Applicant contended that Magistrate cannot summon the applicant under Section 409 I.P.C. by adopting the procedure contained in Section 190(1)(b) Cr.P.C. So the cognizance and summoning order barred and requested to quash entire proceedings and accepted the final report as submitted by the Investigating Officer.
9. Learned counsel for the applicant relied on the case law of Harkesh vs. State of U.P. relevant para nos. 17 and 18 extracted are hereinbelow:-
"17. In the present case the learned Magistrate while taking cognizance under Section 190(1)(b) of the Code has taken into consideration the affidavits of complainant and other witnesses filed alongwith Protest Petition which was not permissible in law. He could take cognizance on the basis of the Protest Petition or the original complaint but in that event he was bound to follow procedure laid down for complaint cases. The distinction between two types of cognizance is apparent in as much as cognizance under Section 190(1) (b) is taken only on the basis of papers forwarded by police under Section 173(2) Cr.P.C. but when the Magistrate makes up his mind to take into consideration other material or evidence it would be a case of taking cognizance under Section 190(1)(a) of the Code and for that matter procedure prescribed for complaint cases under Sections 200 and 202 Cr.P.C. has to be followed. If the Magistrate was of the opinion that the investigating officer had failed to record statements of material witnesses, it was open for the learned Magistrate to have sent back the case to police for a further investigation.
18. For the above reasons, the impugned order of the learned Magistrate cannot be sustained."
10. Learned Judicial Magistrate accepted the protest petition along with affidavit and photostat copy of post office account of the Manager of alleged School.
11. It is contended by learned counsel for the applicant that along with protest petition filed by the complainant against final report submitted by Investigating Officer, some affidavits were filed by applicant which have been considered by Magistrate and thereafter final report has been rejected and thus, accused cannot be summoned.
12. Per contra Learned A.G.A. submitted that it is open to the Magistrate to accept or not accept the final report submitted by police and the Magistrate can examine the matter himself and if find expedient on the basis of material available, he can summon the accuse. Learned A.G.A. pointed out that in present case, the Magistrate recorded his opinion on the basis of evidence collected by Investigating Officer as well as affidavit placed before him along with account of post office and copy of letter of the Manager of concerned School and therefore, it cannot be said that Magistrate has not applied his mind. He also contended that there is no occasion for Magistrate to consider material placed before him by complainant along with protest petition.
13. Chapter XV of the Cr.P.C. deals with conditions requisites for initiation of proceedings and also the power of cognizance of the Magistrate under Section 190 Cr.P.C. Section 190 Cr.P.C. reads as under:-
14. Section 190(1) Cr.P.C. is quoted hereinbelow :-
"190. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed."
15. Section 200 Cr.P.C. deals with examination of complainant and Section 204 Cr.P.C. empowers a Magistrate to issue summon or warrants as the case may be to secure tendency of an accused if in the opinion of Magistrate, there is sufficient ground to proceed and take cognizance of offence.
16. If Magistrate finds that police has not made proper investigation and submitted final report then the following recourse is available to the concerned Magistrate. He may adopt any one of them as the fact and circumstances of the case may require.
I. He may agree with the conclusion arrived at by the police, accept the report and drop the proceedings but before so doing, he shall give opportunity of hearing to the complainant.
II. He may take cognizance under Section 190(1)(b) of Cr.P.C. and issue process straightaway to the accused without being bound by the conclusion of the Investigating Agency where he is satisfied upon the facts discovered or narrated by the police, there is sufficient ground to proceed.
III. He may order further investigation after he is satisfied that investigation was made in perfunctory manner.
IV. Or he may without issuing process or dropping the proceedings may decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as a complaint and proceed to examine the complainant and his witnesses under Section 200 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.
17. Learned Apex Court in Tularam versus Kishore Singh Air 1970 Supreme held that Magistrate can ignore the final report submitted by police including conclusion and take cognizance of case under Section 190(1) on the basis of material collected during investigation and issue process or in the alternative he may take cognizance of original complaint and examine the complainant and his witness and thereafter issue process to accuse if he is of opinion that case should be proceeded with.
18. Learned counsel for the applicant relied on the case law of Gangadhar Janardan Mhatre vs. State of Maharashtra & others relevant paras 8 and 9 extracted are hereinbelow:-
"8. In Abhinandan Jha v. Dinesh Mishra, this Court while considering the provisions of Sections 156(3), 169, 178 and 190 of the Code held that there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the magistracy and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c).
9. 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 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 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 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 Indian Carat (P) Ltd. v. State of Karnataka). The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh case that were the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard.
16. A similar view has also been expressed in Rakesh and another Vs. State of U.P. And another MANU/SC/0689/2014 : 2014 (13) SCC 133 where Court referred to and relied on the decision in H.S. Bains Vs. State (UT of Chandigarh) MANU/SC/0126/1980 : 1980 (4) SCC 631.
17. In Minu Kumari and another Vs. State of Bihar and others MANU/SC/8098/2006 : 2006 (4) SCC 359, Court said as under:
"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 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 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 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. In this case Magistrate rightly summoned the accuse under Section 190(1)(b) Cr.P.C.
18. In Sunil Bharti Mittal Vs. Central Bureau of Investigation MANU/SC/0016/2015 : 2015 (4) SCC 609, Court said:
"... even if a person is not named as an accused by the police in the final report submitted, the Court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (See Union of India v. Prakash P. Hinduja and Anr. MANU/SC/0446/2003 : 2003 (6) SCC 195). Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer."
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:
"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 which is erroneous in view of the law cited above."
(emphasis added)
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:
"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 affidavits filed along with protest petition and this approach of the Magistrate was not in accordance with law."
(emphasis added)"
19. Looking to the facts and circumstances of the case, I find, that in the present case Magistrate has passed the order with regard to material collected by Investigating Officer during investigation Magistrate clearly stated in his order that on perusal of C.D it transpired that complaint supported his version in statement under Section 161 Cr.P.C. All the material regarding documentary evidence collected by Investigating Officer during investigation. Such as Post Office Pass Book with account Sanchayika etc. No additional evidence taken by Magistrate with protest petition although O.P. No. 2 file their affidavit with protest petition. So, it is wrong to say that the Magistrate summoned the applicant only on the basis of affidavit. But Magistrate summoned the applicant on the basis of material collected by Investigating Officer during investigation. On perusal of the order there is no such order regarding further investigation. In Dr. Nupur Talwar vs. C.B.I. Delhi & another MANU/SC/0009/2012 : A.I.R. 2012 SC 87 where the Magistrate while rejecting the final report submitted by Investigating Officer had taken cognizance under Section 190(1)(b) Cr.P.C. It has been held by the Hon'ble Supreme Court that "order whereby cognizance of offence has been taken by the Magistrate should not be interfered with unless it is perverse or based on no material; Superior Court should exercise utmost restraint and caution before interfering with an order of taking cognizance by the Magistrate otherwise the holding of trial will be stalled. Superior Court should maintain this restrain to uphold the rule or law and sustain the faith of the common man in the administration of justice. In this case affidavit placed before Magistrate along with protest petition and learned Magistrate find that final report is liable to be rejected. Magistrate has given proper reason for rejecting the police report and perusing the evidence recorded by police officer in case diary and on the basis of evidence recorded in case diary and perusing the statement on case diary summon the accused. In this regard, approach of the Magistrate is quite legal and it cannot be said that it is contrary to principle laid down in above authority submitted by applicant's counsel.
20. In the result, application is liable to be rejected, there is no illegality or irregularity in the order passed by learned Magistrate. Learned trial court directed to decide the case expeditiously without unnecessary adjournment.
21. Interim order, if any, shall vacate forthwith.
22. Accordingly, this application under Section 482 is disposed of.
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