State v. Shahroj Khan) arising out of Case Crime No
Case Details
Neutral Citation No. - 2024:AHC:141063 Court No. - 77 Case :- APPLICATION U/S 482 No. - 12904 of 2024 Applicant :- Shayna And 11 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jitendra Kumar Mishra Counsel for Opposite Party :- Dharmendra Kumar Singh,G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Jitendra Kumar Mishra, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and Mr. Dharmendra Kumar Singh, the learned counsel representing first informant/opposite party-2. 2. Perused the record. 3. Challenge in this application under Section 482 Cr.P.C. is to the order dated 09.11.2023 passed by Chief Judicial Magistrate,Farrukhabad, in Misc. Case No. 1011/11 of 2023 (State
Facts
Vs. Shahroj Khan) arising out of Case Crime No. 81 of 2023 under Sections 147, 452, 352, 323, 504, 506, 427 I.P.C., Police Station- Maudarwaja, District-Farrukhabad, now pending in Court of Chief Judicial Magistrate, Farrukhabad, whereby the concerned Magistrate has not only allowed the protest petition filed by first informant/opposite party-2 against police report dated 11.07.2023 submitted under Section 173(2) Cr.P.C., rejected the police report dated 11.07.2023 submitted by the Investigating Officer, under Section 173 (2) Cr.P.C. but also has simultaneously taken cognizance, in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. and summoned the applicants to face trial. 4. Record shows that in respect of an incident, which is alleged to have occurred on 07.03.2023, a prompt FIR dated 07.03.2023 was lodged by first informant/ opposite party-2 Shahroj and was registered as Case Crime No. 0081 of 2023 under Sections 147, 452, 352, 323, 504, 506, 427 I.P.C., Police Station-Maudarwaja, District-Farrukhabad. In the aforesaid applicant 12 persons namely 1. Shayna 2. Kayum 3. Sharif, 4. Pappu, 5. Rukhsana 6. Naeem 7. Ashif 8. Farookh 9. Sonu, 10. Zahida @ Mumtaj 11. Sonu @ Ahsan 12. Soni, have been nominated as named accused. 5. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. On the basis of material collected by him, during course of investigation, including the statements of various witnesses examined under Section 161 Cr.P.C., he came to the conclusion that offence complained of is not established. He, accordingly, opined to submit the final report. Investigating Officer, thus, submitted the police report dated 11.07.2023 (final report) in terms of Section 173(2) Cr.P.C.. 6. Upon submission of aforementioned police report before Court below, the first informant, Shahroj i.e. opposite party-2 herein filed his protest petition dated 09.11.2023 against the same. It is apposite to mention here that under the Code i.e. Cr.P.C. there is no provision regarding filing of protest petition by the first informant against the police report. However, the same has been provided for, by the judgment of Supreme Court in Bhagwant Singh Vs. Commissioner of Police And Another, (1985) 2 SCC 537. 7. After aforementioned protest petition was filed, the jurisdictional Magistrate proceeded to consider the police report in the light of the protest petition. Ultimately, vide order dated 09.11.2023, the concerned Magistrate i.e Chief Judicial Magistrate, Farrukhabad, allowed the protest petition filed by the first informant-opposite party-2, rejected the police report dated 11.07.2023 and simultaneously summoned the applicants, under Sections 147, 452, 352, 323, 504, 506, 427 I.P.C. The order impugned further records that the consequential case shall proceed as a state case.
Legal Reasoning
this Court in present application. The same is, therefore, liable to be dismissed. 12. Having heard Mr. Jitendra Kumar Mishra, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, Mr. Dharmendra Kumar Singh, the learned counsel representing first informant/opposite party-2 and upon perusal of record, this Court finds that the solitary issue that has emerged for consideration before this Court is as to:- whether after rejecting the police report submitted by the Investigating Officer in terms of Section 173(2) Cr.P.C., yet the Magistrate can exercise jurisdiction under Section 190(1)(b) Cr.P.C. by taking cognizance upon the said police report and proceed with the matter as a state case. 13. The issue so raised is no longer res-integra and stands concluded by the judgments of this Court in (1) Hari Ram Vs. State of U.P. and Another, 2016 ADJ Online, 0185 (Criminal Revision No. 695 of 2001) and (2) Application U/s 482 Cr.P.C. No. 8563 of 2023 (Smt. Bhuri Vs. State of U.P. and Another) decided on 15.03.2023. This Court in aforementioned judgments has held that once the Magistrate has rejected (NIRAST) the police report submitted under Section 173(2) Cr.P.C. then the Magistrate is denuded of his jurisdiction to take cognizance under Section 190(1)(b) Cr.P.C. and proceed with the matter as a state case. In view of above, the order impugned cannot be sustained and is, therefore, liable to be set aside. 14. As a result, the present application under Section 482 Cr.P.C. succeeds and is liable to be allowed. 15. It is, accordingly, allowed. 16. The order impugned impugned dated 09.11.2023 passed by Chief Judicial Magistrate, Farrukhabad in Case No. 1011/11 of 2023 (State Vs. Shahroj Khan) arising out of Case Crime No. 81 of 2023 under Sections 147, 452, 352, 323, 504, 506, 427 I.P.C., Police Station-Maudarwaja, District-Farrukhabad, now pending in Court of Chief Judicial Magistrate, Farrukhabad is, hereby, set aside. 17. The matter shall stand remitted to Court concerned for passing a fresh order in the light of observations made herein above. The necessary exercise shall be undertaken by Court below within a period of two months from the date of presentation of a certified copy of this order. Order Date :- 31.8.2024 YK
Arguments
8. Mr. Jitendra Kumar Mishra, the learned counsel for applicants submits that the order impugned in present application under Section 482 Cr.P.C. is manifestly illegal being in excess of jurisdiction. Consequently, the same is liable to be set aside by this Court. 9. According to the learned counsel for applicants, the words "charge sheet" and "final report" have not been defined in the Code i.e. Cr.P.C. The Code (Cr.P.C.) only speaks of the police report. Section 190 Cr.P.C. provides the procedure to be adopted by the Magistrate upon submission of the police report. The parameters regarding exercise of jurisdiction by Magistrate/Court, under Section 190 Cr.P.C. now stands crystallized by the judgment of Supreme Court in Vishnu Kumar Tiwari Vs. State of U.P. and Another, (2019) 8 SCC 27. 10. It is then submitted by the learned counsel for applicants that once the police report dated 29.08.2021 submitted by Investigating Officer was set aside (NIRAST) by the jurisdictional Magistrate then in that eventuality, he could not have taken cognizance upon the same, in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. Admittedly, proceedings after taking of cognizance by the concerned Court can proceed as a state case only when the cognizance has been taken upon the police report. Since there was no police report in existence, no cognizance could have been taken by the concerned Magistrate on the basis of police report. The proper course for the jurisdictional Magistrate was not to accept the police report (ASWIKAR) and thereafter proceed with the matter. On the above premise, the learned counsel for applicants submits that the order impugned cannot be sustained and is, therefore, liable to be set aside by this Court. 11. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Mohd. Daud, the learned counsel representing first informant- opposite party-2 have vehemently opposed the present application. They submit that the order impugned in present application is perfectly just and legal. Court below, while exercising it's jurisdiction under Section 190(1)(b) Cr.P.C. can look into the papers accompanying the police report and on basis thereof, arrive at it's own independent conclusion. The Court is not bound by the opinion expressed by the Investigating Officer in the police report. As such, no interference is warranted by this Court in present application inasmuch as, cognizance has been taken by the Court concerned only after prima-facie satisfaction has been recorded that criminality alleged to have been committed by applicants is prima-facie apparent as per the papers accompanying the police report. They, therefore, submit that no interference is warranted by