Criminal Case No. 568/12 of 2022 · High Court
Case Details
Neutral Citation No. - 2024:AHC:134448 Court No. - 77 Case :- APPLICATION U/S 482 No. - 14869 of 2024 Applicant :- Rahul Sharma And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohammad Haadi Zaidi,Zia Naz Zaidi Counsel for Opposite Party :- G.A.,Vinay Sharma Hon'ble Rajeev Misra,J. 1. Heard Mr. Vikrant Pandey along with Miss Zia Naz Zaidi, the learned counsel for applicants, the learned A.G.A. for State- opposite party-1 and Mr. V.M. Zaidi, the learned Senior Counsel assisted by Mr. Vinay Sharma, 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 18.01.2024 passed by Additional Chief Judicial Magistrate, Court No.-1, Muzaffar Nagar, in Criminal Case No. 568/12 of 2022 (Menka Vs. Rahul and Others), Police Station-Nai Mandi, District-Muzaffar Nagar, whereby Court below has
Facts
allowed the protest petition filed by first informant-opposite party- 2 against the Police Report No. 149 of 2021 dated 25.12.2021 and has simultaneously taken cognizance and summoned the applicants under Sections 427, 380, 120-B IPC, Police Station-Nai Mandi, District-Muzaffar Nagar. The impugned order further records that consequential case shall proceed as a state case. 4. Record shows that an application under Section 156(3) Cr.P.C. was filed by first informant-opposite party-2, which came to be allowed, vide order dated 18.11.2021 passed by Additional Chief Judicial Magistrate, Court No.-1, Muzaffar Nagar. In compliance of above order dated 18.11.2021, an FIR dated 01.12.2021 came to be registered as Case Crime No. 0608 of 2021, under Sections 427, 380, 120-B IPC, Police Station-Nai Mandi, District-Muzaffar Nagar. In the aforesaid FIR, opposite party-2 Menka @ Monti has been nominated as first informant, whereas 5 persons namely - (1) Rahul Sharma, (2) Sudhir Kumar Sharma, (3) Sunil Dutt Sharma, (4) Sushil Sharma and (5) Manikant Atrey 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, he came to the conclusion that no offence as complained of is made out against named accused. In view of above, Investigating Officer opined to submit the final report. Accordingly, Investigating Officer submitted the Police Report No. 149 of 2021 dated 25.12.2021 in terms of Section 173(2) Cr.P.C. 7. Upon submission of aforementioned police report before concerned Magistrate, the first informant-opposite party-2 in the light of the judgment of Supreme Court in Bhagwant Singh Vs. Commissioner of Police And Another, (1985) 2 SCC 537, filed a protest petition against the the police report dated 25.12.2021. Thereafter, Court below examined the protest petition in the light of the papers accompanying the aforementioned police report. Ultimately, Court below, by means of order impugned dated 18.01.2024, set aside the police report, allowed the protest petition, took cognizance upon the police report and summoned the applicants under Sections 427, 380, 120-B IPC with a further direction that consequential case shall proceed as a state case.
Legal Reasoning
integra and stands concluded by the judgments of this Court in following cases;- (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. 15. As a result, the present application under Section 482 Cr.P.C. succeeds and is liable to be allowed. 16. It is, accordingly, allowed. 17. The impugned order dated 18.01.2024 passed by Additional Chief Judicial Magistrate, Court No.-1, Muzaffar Nagar, in Criminal Case No. 568/12 of 2022 (Menka Vs. Rahul and Others), Police Station-Nai Mandi, District-Muzaffar Nagar arising out of Case Crime No. 0608 of 2021, under Sections 427, 380, 120-B IPC, Police Station-Nai Mandi, District-Muzaffar Nagar is, hereby, set aside. 18. 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 :- 21.8.2024 Vinay
Arguments
9. Mr. Vikrant Pandey along with Miss Zia Naz Zaidi, the learned counsel for applicant 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. 10. According to the learned counsel for applicant, 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 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. 11. It is then submitted by the learned counsel for applicant that once the police report dated 25.12.2021 submitted by Investigating Officer was set aside (NIRAST) by Court below then in that eventuality, the Court concerned 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 Court has taken cognizance upon the police report. Since there was no police report in existence, no cognizance could have been taken by Court below on the basis of police report. The proper course of the Court below was not to accept the police report (ASWIKAR). On the above premise, the learned counsel submits that the order impugned cannot be sustained and is, therefore, liable to be set aside. 12. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. V.M. Zaidi, the learned Senior Counsel assisted by Mr. Vinay Sharma, 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 a prima-facie satisfaction has been recorded that criminality alleged to have been committed by applicant is prima-facie apparent as per the papers accompanying the police report. They, therefore, submit that no interference is warranted by this Court in present application. The present application is, therefore, liable to be dismissed. 13. Having heard Mr. Vikrant Pandey along with Miss Zia Naz Zaidi, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, Mr. V.M. Zaidi, the learned Senior Counsel assisted by Mr. Vinay Sharma, 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. 14. The issue as has emerged in this application is no longer res-