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Hargyan Petitioner v. State Of U.P & Another S
Structured Summary of the Opinion
Factual and Procedural Background
This revision under section 397/401 Cr.P.C was filed against the order dated 6.7.2011 passed by the Judicial Magistrate, Moradabad in Criminal Case No. 1394 of 2010 (Smt. Sudha Rani v. Hargyan), arising out of Crime No. 524 of 2008, P.S. Behjoi, District Moradabad. The police had submitted a final report which was rejected by the Magistrate; cognizance was taken and the revisionist Hargyan was summoned to face trial under sections 376 and 506 IPC. The court heard learned counsel for the revisionist and the learned A.G.A. for the State and perused the record. No notice was issued to the private opposite party in view of the order proposed to be passed, but liberty was reserved for that party to apply for variation or modification if aggrieved.
Legal Issues Presented
- Whether the Magistrate validly took cognizance of the offences on the basis of affidavits of the complainant and witnesses instead of following the procedures available on receipt of a police final report and protest petition.
- Whether the Magistrate followed any of the four courses of action enumerated by the Division Bench in Pakhando v. State of U.P. when dealing with a final report and a protest petition.
Arguments of the Parties
Revisionist's Arguments
- The Magistrate neither took cognizance on the basis of material available in the case diary nor adopted the procedure prescribed for complaint cases.
- The Magistrate adopted a novel method by taking cognizance on the basis of affidavits of the complainant and witnesses Chandra Pal and Guljari.
The opinion records that learned A.G.A. for the State was heard, but no detailed account of the State's arguments is set out in the text.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pakhando v. State of U.P, 2001 (43) ACC 1096 | On receipt of a police final report and a protest petition, the Magistrate has four courses open: (1) accept the report and drop proceedings after hearing the complainant; (2) take cognizance under Section 190(1)(b) and issue process if satisfied by material in the case diary; (3) order further investigation if the investigation was perfunctory; or (4) treat the protest petition as a complaint and proceed under Sections 200 and 202 Cr.P.C., then decide whether to dismiss or issue process. | The Court applied this precedent to conclude that the Magistrate in the present case failed to adopt any of these four courses and therefore the order taking cognizance on the basis of affidavits could not be sustained. The Magistrate was directed to take a fresh decision on the final report in the light of Pakhando (supra). |
Court's Reasoning and Analysis
The court reviewed the impugned order and noted the Magistrate's criticisms of the investigating officer for not recording the statement of witness Guljari, for not recording the victim's statement under section 164 Cr.P.C, and for not seizing the victim's clothes or sending them to a public analyst. The court then recalled the Division Bench ruling in Pakhando v. State of U.P., which enumerates four permissible courses a Magistrate may adopt upon receiving a police final report and a protest petition.
The court found that the Magistrate in this case did not adopt any of the four prescribed courses:
- The Magistrate did not take cognizance under Section 190(1)(b) Cr.P.C on the basis of material in the case diary, which would have been appropriate if the diary contained sufficient material.
- The Magistrate did not direct further investigation with specific directions despite identifying investigative omissions.
- The Magistrate did not accept the final report and reject the protest petition even if convinced no case for trial was made out.
- The Magistrate did not treat the protest petition as a complaint and follow the complaint procedure under Sections 200 and 202 Cr.P.C.
Instead, the court observed, cognizance was taken on the basis of affidavits of the complainant and witnesses — a course the court held to be impermissible in the circumstances. Based on this analysis, the court concluded that the impugned order could not be sustained.
Holding and Implications
Holding: Revision is allowed and the impugned order dated 6.7.2011 is set aside.
Implications:
- The direct effect is that the Magistrate's order taking cognizance on the basis of affidavits is quashed and the matter is remitted to the Magistrate to take a fresh decision on the police final report in the light of the Division Bench decision in Pakhando (supra).
- The court held that cognizance cannot be taken on the basis of affidavits in the circumstances presented; the Magistrate must adopt one of the lawful courses (as per Pakhando) when dealing with a final report and protest petition.
- No broader new precedent was announced by this single-judge order; it applied the existing Division Bench precedent (Pakhando) to the facts of the present case.
- The private opposite party was not served notice because of the nature of the order, but was given liberty to apply for variation or modification if aggrieved.
Hon'ble S.C Agarwal, J.
Heard learned counsel for the revisionist and learned A.G.A for the State and perused the material available on record.
No notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he/she feels so aggrieved.
This revision under section 397/401 Cr.P.C is directed against order dated 6.7.2011 passed by Judicial Magistrate, Moradabad in criminal case no. 1394 of 2010 (Smt. Sudha Rani v. Hargyan) arising out of case crime no. 524 of 2008, P.S Behjoi, District Moradabad, whereby the final report submitted by the police was rejected, cognizance was taken and the revisionist Hargyan was summoned to face trial under sections 376, 506 IPC.
Learned counsel for the revisionist submitted that the Magistrate has neither taken cognizance on the basis of material available in the case diary nor the procedure prescribed for complaint cases was adopted, but a novel method was adopted by the Magistrate and cognizance has been taken on the basis of affidavits of the complainant and the witnesses Chandra Pal and Guljari.
A perusal of the impugned order reveals that the Magistrate has criticized the investigating officer for not recording the statement of witness Guljari, not getting the statement of the victim recorded under section 164 Cr.P.C and for not taken into possession the clothes of the victim and not sending them for analysis to public analyst.
A Division Bench of this Court in the case of Pakhando v. State of U.P, 2001 (43) ACC 1096, held that on receipt of a final report submitted by the police and a protest petition being filed by the complainant, the Magistrate has following four courses opened to him:-
(1) 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
(2) 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
(3) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or
(4) 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.
In the instant case, learned Magistrate has not adopted any of the four courses available to him. If there was sufficient material available in the case diary, the Magistrate could have taken cognizance under Section 190(1)(b) Cr.P.C on the basis of material available in the case diary. If the investigation was not conducted properly, the Magistrate could have directed further investigation giving specific directions on the points on which further investigation was required. If the Magistrate was of the opinion that no case for trial is made out, he could have accepted the final report and rejected the protest petition and lastly the Magistrate could have treated the protest petition as a complaint and adopted the procedure prescribed for complaint cases.
In the instant case, neither cognizance was taken on the basis of the material available in the case diary nor the protest petition was treated as a complaint. The cognizance cannot be taken on the basis of affidavits of the complainant or the witnesses, therefore, the order passed by the Magistrate cannot be sustained and is liable to be set-aside.
Revision is allowed.
The impugned order dated 6.7.2011 is set-aside.
Learned Magistrate is directed to take a fresh decision on the final report in the light of a Division Bench decision of this Court in case of Pakhando (supra).
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