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Kallu And Others Petitioner v. State Of U.P And Another
Factual and Procedural Background
By an application under section 482 Cr.P.C., five applicants (Kallu, Sanjeev Kumar, Gopal Sharan Tripathi, Sunil Kumar and Ravi Tripathi) sought quashing of the proceedings in criminal case No. 616 of 2009 (State v. Kallu & others), arising out of crime No. 254 of 2008 registered at P.S. Bakewar, District Etawah. The offences originally alleged in the FIR included sections 147, 148, 324, 504, 506, 379 IPC and 3(1)(X) SC/ST Act.
The police investigation resulted in a final report (charge-sheet) being submitted. The complainant, Deepak Kumar, filed a protest petition against the final report and filed affidavits and an injury report in support. The Additional Chief Judicial Magistrate, Court No. 4, Etawah, rejected the final report and — by order dated 14.12.2009 — took cognizance under section 190(1)(b) Cr.P.C. and summoned the applicants to face trial. The applicants challenged that summoning order and the resulting proceedings by invoking the inherent jurisdiction of this Court under section 482 Cr.P.C.
Legal Issues Presented
- Whether a magistrate may take cognizance under section 190(1)(b) Cr.P.C. on the basis of extraneous material (specifically affidavits and an injury report) filed by the complainant in support of a protest petition against a police final report.
- If the material in the police case-diary is insufficient to take cognizance under section 190(1)(b), whether the magistrate must treat the protest petition as a complaint and follow the procedure in Chapter XV Cr.P.C. (notably Sections 200 and 202) before deciding whether to issue process.
Arguments of the Parties
Applicants' Arguments
- The summoning order is legally infirm because the learned magistrate relied upon affidavits filed by the complainant in support of the protest petition — material which the applicants' counsel characterized as extraneous and not permissible to be considered for taking cognizance on a final report.
- Cognizance under section 190(1)(b) Cr.P.C. on a final report can be taken only if there is material in the case-diary sufficient to summon the accused; if case-diary material is insufficient, the magistrate must treat the protest petition as a complaint and follow the Chapter XV Cr.P.C. procedure (Sections 200 and 202) to decide whether process should issue.
- Reliance was placed on the Division Bench decision in Pakhando & others v. State of U.P. & another (2001 (43) ACC 1096) to support the procedural requirement when a protest petition is filed against a final report.
Respondent / State's Arguments
- The Additional Government Advocate (AGA) contended that the impugned order did not suffer from illegality: on the basis of the protest petition along with affidavits and injury report, a prima facie case was made out and the magistrate was entitled to take cognizance under section 190(1)(b) Cr.P.C. and summon the accused.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pakhando & others v. State of U.P. & another (2001 (43) ACC 1096) | Set out the procedural options available to a magistrate on receipt of a police final report: (I) accept report and drop proceedings (with hearing to complainant), (II) take cognizance under s.190(1)(b) if sufficient ground exists on material unearthed by police, (III) order further investigation, or (IV) treat protest petition as complaint and proceed under Sections 200 and 202 Cr.P.C. | The court relied on this authority to affirm that if case-diary material is insufficient, the protest petition must be treated as a complaint and the Chapter XV procedure followed; the magistrate could not bypass that route by taking cognizance solely on affidavits filed with the protest petition. |
| Mohammad Yusuf & others v. State of U.P. & another (2008 (1) ACR 68) | Holds that where a magistrate decides to take cognizance under s.190(1)(b) after a final report, he must act on statements recorded in the case-diary and material collected during investigation; it is impermissible at that stage to consider extraneous material such as protest petitions and accompanying affidavits without following Chapter XV procedures. | The court quoted and applied this principle to conclude that the impugned cognizance (taken on the basis of protest petition affidavits and injury report) was vitiated because extraneous material was considered instead of relying solely on the case-diary or, alternatively, treating the protest petition as a complaint and following Sections 200/202 Cr.P.C. |
Court's Reasoning and Analysis
The court heard learned counsel for the applicants and the AGA for the State. After considering rival submissions, the court accepted the applicants' central contention that a magistrate taking cognizance under section 190(1)(b) of the Cr.P.C. on a police final report must confine himself to the material in the case-diary and material collected by the investigating officer. The court summarized and applied the principles from binding precedents (notably Mohammad Yusuf and Pakhando) to the facts of the present matter.
The reasoning proceeded in these steps:
- Identify the legal constraint: when a final report is submitted, cognizance under s.190(1)(b) cannot be founded on extraneous material (such as a protest petition and accompanying affidavits) — the magistrate must examine the case-diary and investigation material if he intends to act under s.190(1)(b).
- Apply the Pakhando framework: where case-diary material is insufficient, the magistrate has the option to treat the protest petition as a complaint and proceed under Chapter XV (Sections 200 and 202) to decide whether to issue process; he cannot simply take cognizance under s.190(1)(b) on the basis of affidavits filed with a protest petition.
- Examine the impugned order: the magistrate in this matter rejected the final report and expressly took cognizance under s.190(1)(b) after considering the complainant's affidavits and injury report filed in support of the protest petition. That approach ran contrary to the principles laid down in Mohammad Yusuf and Pakhando.
- Conclude that the impugned order was vitiated for considering extraneous material rather than following the appropriate Chapter XV procedure when the case-diary did not provide sufficient material for cognizance.
On the basis of that analysis, the court determined that the proper course was to set aside the summoning order and remit the matter to the magistrate to take fresh steps in accordance with the Chapter XV procedure, treating the protest petition as a complaint and following Sections 200 and 202 Cr.P.C.
Holding and Implications
Holding (core ruling): The application under section 482 Cr.P.C. is allowed; the impugned summoning order dated 14.12.2009 is set aside and the proceedings in Criminal Case No. 616 of 2009 (State v. Kallu & others) are quashed.
Immediate consequences ordered by the court:
- The impugned summoning order (annexure-5) is set aside and the criminal proceedings in case No. 616 of 2009 are quashed.
- The learned magistrate is directed to pass a fresh order on the protest petition filed by the complainant against the final report in crime No. 254 of 2008 (P.S. Bakewar, District Etawah), treating that protest petition as a complaint and following the procedure prescribed by Sections 200 and 202 Cr.P.C.
Broader implications: The court applied existing precedent (Pakhando and Mohammad Yusuf) and did not purport to lay down a new principle of law. The decision enforces an existing procedural boundary: a magistrate taking cognizance under s.190(1)(b) must rely on the material collected by the investigating officer (case-diary), and where that material is insufficient the protest petition must be processed under Chapter XV (Sections 200/202). No novel precedent was announced by this order; the ruling directs corrective procedural action in the specific case before the court.
By means of this application under section 482 of the Code of Criminal Procedure (in short ‘the Cr.P.C’), the applicants 1. Kallu 2. Sanjeev Kumar 3. Gopal Sharan Tripathi 4. Sunil Kumar and 5. Ravi Tripathi have invoked inherent jurisdiction of this Court, for quashing the proceedings of criminal case No. 616 of 2009 (State v. Kallu & others) arising out of case crime No. 254 of 2008, under sections 147, 148, 324, 504, 506, 379 IPC and 3 (1) (X) SC/ST Act, P.S Bakewar, District Etawah and also to set aside the summoning order dated 14.12.2009 passed by the Additional Chief Judicial Magistrate, Court No. 4, Etawah.
2. By the impugned summoning order, the applicants named above have been summoned to face the trial under section 147, 148, 324, 504, 506, 379 IPC and 3 (1) (X) SC/ST Act, by the learned magistrate taking cognizance under section 190 (1) (b) Cr.P.C after rejecting the final report and accepting protest petition filed by the complainant along with certain affidavits.
3.Shorn of unnecessary details, the facts emerging from the record leading to filing of this application, in brief, are that an FIR was lodged by the complainant Deepak Kumar, s/o Shiv Narayan at P.S Bakewar, District Etawah (O.P No. 2 herein) implicating the applicants Kallu, Sanjeev Kumar, Gopal Sharan Tripathi, Sunil Kumar and Ravi Tripathi as accused. A case under section 147, 148, 324, 504, 506, 379 IPC and 3 (1) (X) SC/ST Act was registered against the applicants at crime No. 254 of 2008. After investigation, final report was submitted by the investigating officer. On getting notice of the final report, the complainant filed protest petition against final report and in support thereof, certain affidavits and injury report were filed. On the basis of those affidavits and injury report, the learned Additional Chief Judicial Magistrate, court No. 4, Etawah, vide impugned order dated 14.12.2009, passed in F.R Case No. 76 of 2009, after rejecting the final report, summoned the applicants to face the trial as stated herein-above. Hence the applicants have invoked inherent jurisdiction of this Court to quash the impugned summoning order as well as entire proceedings of the case.
4.I have heard learned counsel for the applicants and AGA for the State.
5.The only submission made by learned counsel for the applicants was that the impugned summoning order is bad in law, as the applicants have been summoned by the learned magistrate on the basis of the affidavits, which have been filed by the complainant in support of the protest petition against final report, which is not permissible under law. The contention of the learned counsel was that cognizance under section 190 (1) (b) Cr.P.C on the final report can be taken only, if there is material in the case diary to summon the accused persons and for this purpose extraneous material like affidavits filed by the complainant with the protest petition cannot be considered. It was also submitted by learned counsel that if material in the case diary is not sufficient to take cognizance against the accused persons and if any protest petition has been filed by the complainant against final report, then in that case, the procedure laid down under Chapter XV Cr.P.C has to be followed by the magistrate after treating the protest petition as complaint. For these submissions reliance has been placed on the observations made by Division Bench of this Court in the case of Pakhando & others v. State of U.P & another 2001 (43) ACC 1096.
6.The learned AGA, on the other hand, submitted that the impugned order does not suffer from any illegality, as on submissions of the protest petition against the final report with affidavits, cognizance can be taken by the magistrate under section 190 (1) (b) Cr.P.C, if prima facie case to summon the accused persons is made out and since in the present case on the basis of the affidavits and injury report filed by the complainant in support of his protest petition against final report, prima facie case is made out against the applicants, hence the learned magistrate was fully justified in taking cognizance against the applicants.
7.Having given my thoughtful consideration to the rival submissions made by the learned counsel for the parties, I find force in the submission of the learned counsel for the applicants that on filing final report, cognizance cannot be taken on the basis of the extraneous material like affidavits filed in support of the protest petition against the final report and if the material in the case diary is not sufficient for summoning the accused persons, then the procedure laid down in Chapter XV Cr. P.C has to be followed by the magistrate after treating the protest petition as complaint, as held by the Division Bench of this Court in Pakhando case (supra).
8.In the present case, the impugned order dated 14.12.2009 (annexure-5) shows that the learned magistrate had taken cognizance under section 190 (1) (b) Cr.P.C after rejecting the final report on the basis of the affidavits of the complainant and his witnesses and injury report filed by the complainant in support of the protest petition against final report, which is not permissible under law. This Court has held in the case of Mohammad Yusuf & others v. State of U.P and another 2008 (1) ACR 68 that the magistrate cannot take cognizance under section 190 (1) (b) Cr.P.C on the basis of the protest petition and affidavits filed in support thereof without following the procedure laid down under Chapter XV Cr.P.C the following observations made in para 11 are worth mentioning :-
“whether the magistrate decides to take cognizance under section 190 (1) (b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigating officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Section 200 and 202 Cr.P.C The Magistrate could not take cognizance under section 190 (1) (b) Cr.P.C on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taking into account extraneous material i.e Protest petition and affidavits while taking cognizance under section 190 (1) (b) Cr.P.C the impugned order is vitiated.”
9.The Division Bench of this Court in the case of Pakhando and others v. State of U.P and another (2001(43) ACC 1096) had the occasion to consider the matter regarding the procedure to be adopted by the Magistrate/Court on submission of the final report by the police. Having taken various authorities into consideration, the following observations have been made by the Division Bench in para 15 of the judgement at page 1100 of the report:-
“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 190(1)(b) 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 the 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 Sections 200 and 202 Cr.P.C and thereafter decide whether complaint should be dismissed or process should be issued.
10. As would appear from the observations made by this Court in Mohammad Yusuf case (supra), cognizance under section 190 (1) (b) Cr.P.C cannot be taken on the basis of the affidavits filed in support of the protest petition against final report and if material in the case diary is not sufficient to take cognizance, then the procedure laid down under Chapter XV Cr.P.C should be followed by the magistrate after treating the protest petition as complaint, as held by Division Bench of this Court in Pakhando case (supra). Therefore, in present case also, if the material in the case diary was not sufficient for summoning the accused persons to face the trial, then the protest petition filed by the complainant against the final report ought to have been registered as complaint and after following the procedure laid down in Section 200 and 202 Cr.P.C it would have decided whether the complaint should be dismissed or process should be issued. If after taking evidence under Section 200 and 202 Cr.P.C, the magistrate decides to take cognizance against the accused persons, final report has to be rejected, but in any case, cognizance cannot be taken merely on the basis of affidavits or other material filed by the complainant in support of the protest petition against final report without following the procedure laid down under Chapter XV Cr.P.C, if the material in the case diary is not sufficient to take cognizance.
11. For the reasons stated herein-above, the impugned summoning order cannot be sustained, as cognizance under section 190 (1) (b) Cr.P.C has been taken by the learned magistrate after rejecting the final report on the basis of the injury report and affidavits filed by the complainant/O.P No. 2 in support of the protest petition against final report without following the procedure laid down under Chapter XV Cr.P.C Therefore, it would be in the interest of justice to send the case back to the court below for passing fresh order on the protest petition filed by the complainant against the final report treating the same as complaint and following the procedure laid down in Chapter XV Cr.P.C
12. Consequently, the application under section 482 Cr.P.C is allowed. Setting aside the impugned summoning order and quashing the proceedings of criminal case No. 616 of 2009 (State v. Kallu & others), pending in the court of Additional Chief Judicial Magistrate, Court No. 4, Etawa, the learned magistrate is directed to pass fresh order on the protest petition filed by the complainant against final report, in case crime No. 254 of 2008 of P.S Bakewar, District Etawah, treating the same as complaint and following the procedure laid down under Section 200 and 202 Cr.P.C
Order Date :- 26. 02. 2010
v.k updh.
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