Ravi Shanker v. Rama Shankder Agarwal and Ors.) emanating out of Case Crime No
Case Details
Neutral Citation No. - 2024:AHC:145487 Court No. - 77 Case :- APPLICATION U/S 482 No. - 16447 of 2024 Applicant :- Ashok Kumar Maheshwari And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Murari Lal Jain Counsel for Opposite Party :- Anil Kumar Pandey,G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
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 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 same is, therefore, liable to be dismissed. 13. Having heard Mr. Vinay Saran, the learned Senior Counsel, assisted by Mr. Nikhil Chaturvedi, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, Mr. Arvind Srivastava along with Mr. Anil Kumar Pandey, 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 so raised is no longer res-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 order impugned dated 09.04.2024 passed by Special Chief Judicial Magistrate, Agra, in Misc. Case No. 851 of 2021 (Ravi Shanker Vs. Rama Shanker Agarwal and others) arising out of Case Crime No. 553 of 2020 under Sections 34, 418, 420, 465, 467, 468, 120-B I.P.C., Police Station- Shahganj, District-Agra 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 :- 29.8.2024 " 5. On the above premise, the learned counsel for applicants submits that, in view of above, present application is also liable to be allowed. 5. Per contra, the learned A.G.A. for State-opposite party-1 and the learned counsel representing first informant/opposite party-2 have vehemently opposed the present application. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicants as noted herein above. 6. In view of and in the light of the observations made by this Court in the order dated 29.08.2024, present application is also allowed in terms of order dated 29.08.2024 referred to above. Order Date :- 6.9.2024 YK
Arguments
1. Heard Mr. Murari Lal Jain, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and Mr. Anil Kumar Pandey, the learned counsel representing first informant/opposite party-2. 2. Perused the record. 3. Applicants-Ashok Kumar Maheshwari And 3 Others, who are charge sheeted accused have approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer: "It is therefore most respectfully prayed that this Hon'ble Court may kindly be pleased to allow this application and quash the Impugned Order dated 09.04.2024 passed by the Ld. Special Chief Judicial Magistrate, Agra in Misc. Case No. 851 of 2021 (Ravi Shanker V. Rama Shankder Agarwal and Ors.) emanating out of Case Crime No. 553 of 2020, Police Station- Shahganj, District-Agra under Sections 34, 418, 420, 465, 467, 468, 120B I.P.C. pending in the Court of Ld. Special Chief Judicial Magistrate, Agra. It is, further prayed that during the pendency of the present application before this Hon'ble court further proceedings of Misc. Case No. 851 of 2021 (Ravi Shanker V. Rama Shankder Agarwal and Ors.) under Sections 418, 420, 465, 467, 468, 120B I.P.C. Police Station-Shahganj, District-Agra as well as operation and effect of impugned order dated 09.04.2024 passed by the Ld. Special Chief Judicial Magistrate, Agra may kindly remain stayed by this Hon'ble Court. Or to pass any such other and further order which this Hon'ble Court may deed fit and proper in the facts and circumstances of the case. 4. At the very outset, the learned counsel for applicants submits that this Court vide order dated 29.08.2024 passed in Criminal Misc. Application No. 16478 of 2024 (Rama Shanker Agarwal and 6 Others Vs. State of U.P. and another) has already quashed the order impugned. For ready reference the order dated 29.08.2024 is reproduced herein-below: "1. Heard Mr. Vinay Saran, the learned Senior Counsel, assisted by Mr. Nikhil Chaturvedi, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and Mr. Anil Kumar Pandey, 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 09.04.2024 passed by Special Chief Judicial Magistrate, Agra, in Misc. Case No. 851 of 2021 (Ravi Shanker Vs. Rama Shanker Agarwal and others) arising out of Case Crime No. 553 of 2020 under Sections 34, 418, 420, 465, 467, 468, 120-B I.P.C., Police Station-Shahganj, District-Agra, now pending in Court of Special Chief Judicial Magistrate, Agra, whereby Court below has not only allowed the protest petition filed by first informant/opposite party-2 against police report dated 17.01.2021 submitted under Section 173(2) Cr.P.C., rejected the police report dated 17.01.2021 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 09.07.2020, a delayed FIR dated 18.11.2020 was lodged by first informant Ravi Shanker Agarwal, Director, M/s Madhav Colonizers Motors Pvt. Ltd. and was registered as Case Crime No. 0553 of 2020 under Sections 34, 418, 420, 465, 467, 468, 120-B I.P.C., Police Station-Shahganj, District- Agra. In the aforesaid FIR, 12 persons namely - (1) Rama Shanker, (2) Smt. Renu Agarwal, (3) Rachit Agarwal, (4) Anugraj Agarwal, (5) Rajesh Malhotra, (6) Subhash Chandra Yadav, (7) Jitendra Vaidik, (8) Ankur Tyagi, (9) Ashok Maheshwari, (10) Sunil Kumar Maheshwari, (11) Keshav Maheshwari and (12) M/s Raghupati Invest Motors Sajhidar 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 17.01.2021 (final report) in terms of Section 173(2) Cr.P.C.. 6. Upon submission of aforementioned police report before Court below, the first informant Sugreev Singh i.e. opposite party-2 herein filed his protest petition dated 13.10.2023 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, Court below proceeded to consider the police report in the light of the protest petition. Ultimately, vide order dated 09.04.2024, Court below allowed the protest petition filed by the first informant-opposite party-2, rejected the police report dated 17.01.2021, and simultaneously summoned the applicants, under Sections 34, 418, 420, 465, 467, 468, 120-B I.P.C. The order impugned further records that the consequential case shall proceed as a police challan case. 9. Mr. Vinay Saran, the learned Senior Counsel, assisted by Mr. Nikhil Chaturvedi, 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. 10. According to the learned senior 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 senior counsel for applicant that once the police report dated 17.01.2021 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 senior 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. Arvind Srivastava, Advocate along with Mr. Anil Kumar Pandey, the learned counsel representing first informant-opposite party-2 have vehemently