Mohd. Aslam v. State of UP), arising out of Case Crime No

3. It has been submitted by learned counsel for the applicant that impugned order is against facts and law and thus liable to be set aside. The applicant has lodged first information report of this case against four persons for offences under Sections 420, 406, 323, 452, 307, 506 IPC but police did not investigate the matter properly and submitted final report (closure report). The applicant has preferred a protest petition, which was registered as a complaint case vide impugned order dated 05.03.2025. The main contention of learned counsel for the applicant is that there was sufficient material on record collected during investigation to take cognizance under Section 190(1)(b) Cr.P.C. and summoning of accused persons but the learned Magistrate has registered the protest petition as a complaint case. Learned counsel has referred a copy of notary agreement annexed as annexure no.4 and submitted that on the basis of this document itself, the accused persons must have been summoned. Referring to facts of the matter, it was submitted that impugned order is liable to be set aside.

4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order.

5. I have considered the rival submissions and perused the record.

6. Chapter XIV of Cr.P.C. deals with conditions requisite for initiation of proceedings and also the powers of cognizance of a Magistrate. Provisions of section 190 Cr.P.C., relevant for this case, are reproduced as under: "190. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try."

7. It is well-settled that if magistrate finds that Police have not made proper investigation and submitted final report, it can direct police to make further investigation in the matter, or, if there is sufficient material, he can pass order taking cognizance and summoning accused. In case of Tula Ram Vs. Kishore Singh AIR 1977 SC 2401, the Apex court observed that Magistrate can ignore a final report submitted by Police including the conclusion and take cognizance of case under Section 190(1)(b) on the basis of material collected during investigation and issue process, or in the alternative, he may take cognizance of original complaint, examine the complainant and his witnesses and thereafter issue process to accused, if he is of opinion that case should be proceeded with. In M/s India Carat Pvt. Ltd. Vs. State of Karnataka 1989 (26) ACC 280 (SC), the Supreme Court has observed that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused. Section 190(1)(b) Cr.P.C. does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion of making out a case against accused. Magistrate can ignore conclusion arrived at by Investigating Officer, independently applying his mind to the facts emergent from investigation and can take cognizance of case or in alternative he can take cognizance of original complaint and examine complainant and his witness and thereafter issue process to accused, if he is of opinion that the case should proceed. The observations made in M/s India Carat Pvt. Ltd. (supra), make it very clear that Magistrate if proceeds to take cognizance on Police report, material which can be examined by him would be such which has been collected during investigation. If Magistrate finds that Police has not properly made investigation and appropriate material has not been collected, it is always open to him to direct Police for further investigation but if Magistrate finds fault with investigation made by Police and still finds justification to proceed with the matter taking into account complaint made by complainant, in such case he has to examine complainant and his witness and thereafter issue process.

8. Thus, it is clear that while proceeding to issue process considering facts emergent from investigation and taking a different view than what has been reported by Police, Magistrate need not apply procedure laid down in Section 200 and 202 Cr.P.C. However, if Magistrate finds lack of material with investigation of Police, option available to him is to take into account original complaint and if that is adopted by Magistrate, he is bound to follow procedure prescribed in Section 200 and 202 or taking cognizance, but he can not mix-up the material placed by complainant along with Protest Petition to take cognizance after rejecting Police Report but without following the procedure prescribed under Chapter XV. A similar view has also been expressed in Rakesh and another Vs. State of U.P. and another 2014 (13) SCC 133, where Court referred to and relied on the decision in H.S. Bains Vs. State (UT of Chandigarh) 1980 (4) SCC

9. In Minu Kumari and another Vs. State of Bihar and others 2006 (4) SCC 359, Court held as under: "11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take congnizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused."

10. This Court has also followed a similar view and in this connection reference may be made to case of Pakhando and others Vs. State of U.P. 2001 (43) ACC 1096, wherein a Division Bench of this Court after considering Section 190 Cr.P.C. has held that if upon investigation Police comes to conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify forwarding of accused for trial and submits final report for dropping proceedings, Magistrate shall have following four courses and may adopt any one of them: "(I) He may agree 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; (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)(b) 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."

11. Thus, the position is, therefore, now well settled that upon receipt of a police report under Section 173(2), a Magistrate / court is entitled to take cognizance of an offence under Section 190(1) (b) Cr.P.C. even if the police report is to the effect that no case is made out against the accused and for that purpose, the Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. It is also clear that when on receipt of a police report under Section 173(2) to the effect that no case is made out against the accused, the Magistrate / court takes cognizance under Section 190(1)(b) of the Code and summons the accused, in such circumstances the satisfaction of Magistrate / Court must be based on material collected during investigation. In such eventuality the Magistrate 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 investigation Officer.

12. In the instant matter, the applicant has lodged first information report on 19.11.2022 alleging that he has agreed to purchase a plot from accused Afsar Husain for Rs.38 lakh and that part payment of Rs.33,25,000/- was made but later it was found that said Afsar Husain has purchased the said land from a member belonging to scheduled caste without obtaining required permission. The police investigated the matter and submitted final report, wherein it was alleged that complainant has issued two cheques, which were dishonoured and in that regard cases under Section 138 N.I. Act are already pending and that a forged agreement to sell was prepared by the applicant. The applicant/complainant has preferred a protest petition, which was registered as a complaint case. In the protest petition, the complainant has inter-alia alleged that the Investigating Officer did not collect the required evidence and he has not even contacted the applicant/complainant. Statement of notary advocate, who has attested the agreement, has also not been recorded. No such specific evidence could be pointed out on the basis of which the accused persons may have been summoned by taking cognizance under Section 190(1)(b) Cr.P.C.

13. In view of attending facts and circumstances, it can not be said that the impugned order, by which the protest petition of applicant/complainant has been registered as complaint, is suffering from any patent illegality or error of jurisdiction. There is nothing to show that there has been any abuse of process of court or miscarriage of justice. The application under Section 528 B.N.S.S. lacks merit and thus liable to be dismissed.

14. Accordingly, the application u/s 528 B.N.S.S. is dismissed. Order Date :- 3.4.2025 'SP'/-

3. It has been submitted by learned counsel for the applicant that impugned order is against facts and law and thus liable to be set aside. The applicant has lodged first information report of this case against four persons for offences under Sections 420, 406, 323, 452, 307, 506 IPC but police did not investigate the matter properly and submitted final report (closure report). The applicant has preferred a protest petition, which was registered as a complaint case vide impugned order dated 05.03.2025. The main contention of learned counsel for the applicant is that there was sufficient material on record collected during investigation to take cognizance under Section 190(1)(b) Cr.P.C. and summoning of accused persons but the learned Magistrate has registered the protest petition as a complaint case. Learned counsel has referred a copy of notary agreement annexed as annexure no.4 and submitted that on the basis of this document itself, the accused persons must have been summoned. Referring to facts of the matter, it was submitted that impugned order is liable to be set aside.

4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order.

5. I have considered the rival submissions and perused the record.

6. Chapter XIV of Cr.P.C. deals with conditions requisite for initiation of proceedings and also the powers of cognizance of a Magistrate. Provisions of section 190 Cr.P.C., relevant for this case, are reproduced as under: "190. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try."

7. It is well-settled that if magistrate finds that Police have not made proper investigation and submitted final report, it can direct police to make further investigation in the matter, or, if there is sufficient material, he can pass order taking cognizance and summoning accused. In case of Tula Ram Vs. Kishore Singh AIR 1977 SC 2401, the Apex court observed that Magistrate can ignore a final report submitted by Police including the conclusion and take cognizance of case under Section 190(1)(b) on the basis of material collected during investigation and issue process, or in the alternative, he may take cognizance of original complaint, examine the complainant and his witnesses and thereafter issue process to accused, if he is of opinion that case should be proceeded with. In M/s India Carat Pvt. Ltd. Vs. State of Karnataka 1989 (26) ACC 280 (SC), the Supreme Court has observed that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused. Section 190(1)(b) Cr.P.C. does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion of making out a case against accused. Magistrate can ignore conclusion arrived at by Investigating Officer, independently applying his mind to the facts emergent from investigation and can take cognizance of case or in alternative he can take cognizance of original complaint and examine complainant and his witness and thereafter issue process to accused, if he is of opinion that the case should proceed. The observations made in M/s India Carat Pvt. Ltd. (supra), make it very clear that Magistrate if proceeds to take cognizance on Police report, material which can be examined by him would be such which has been collected during investigation. If Magistrate finds that Police has not properly made investigation and appropriate material has not been collected, it is always open to him to direct Police for further investigation but if Magistrate finds fault with investigation made by Police and still finds justification to proceed with the matter taking into account complaint made by complainant, in such case he has to examine complainant and his witness and thereafter issue process.

8. Thus, it is clear that while proceeding to issue process considering facts emergent from investigation and taking a different view than what has been reported by Police, Magistrate need not apply procedure laid down in Section 200 and 202 Cr.P.C. However, if Magistrate finds lack of material with investigation of Police, option available to him is to take into account original complaint and if that is adopted by Magistrate, he is bound to follow procedure prescribed in Section 200 and 202 or taking cognizance, but he can not mix-up the material placed by complainant along with Protest Petition to take cognizance after rejecting Police Report but without following the procedure prescribed under Chapter XV. A similar view has also been expressed in Rakesh and another Vs. State of U.P. and another 2014 (13) SCC 133, where Court referred to and relied on the decision in H.S. Bains Vs. State (UT of Chandigarh) 1980 (4) SCC

9. In Minu Kumari and another Vs. State of Bihar and others 2006 (4) SCC 359, Court held as under: "11. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take congnizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused."

10. This Court has also followed a similar view and in this connection reference may be made to case of Pakhando and others Vs. State of U.P. 2001 (43) ACC 1096, wherein a Division Bench of this Court after considering Section 190 Cr.P.C. has held that if upon investigation Police comes to conclusion that there was no sufficient evidence or any reasonable ground of suspicion to justify forwarding of accused for trial and submits final report for dropping proceedings, Magistrate shall have following four courses and may adopt any one of them: "(I) He may agree 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; (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)(b) 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."

11. Thus, the position is, therefore, now well settled that upon receipt of a police report under Section 173(2), a Magistrate / court is entitled to take cognizance of an offence under Section 190(1) (b) Cr.P.C. even if the police report is to the effect that no case is made out against the accused and for that purpose, the Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. It is also clear that when on receipt of a police report under Section 173(2) to the effect that no case is made out against the accused, the Magistrate / court takes cognizance under Section 190(1)(b) of the Code and summons the accused, in such circumstances the satisfaction of Magistrate / Court must be based on material collected during investigation. In such eventuality the Magistrate 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 investigation Officer.

12. In the instant matter, the applicant has lodged first information report on 19.11.2022 alleging that he has agreed to purchase a plot from accused Afsar Husain for Rs.38 lakh and that part payment of Rs.33,25,000/- was made but later it was found that said Afsar Husain has purchased the said land from a member belonging to scheduled caste without obtaining required permission. The police investigated the matter and submitted final report, wherein it was alleged that complainant has issued two cheques, which were dishonoured and in that regard cases under Section 138 N.I. Act are already pending and that a forged agreement to sell was prepared by the applicant. The applicant/complainant has preferred a protest petition, which was registered as a complaint case. In the protest petition, the complainant has inter-alia alleged that the Investigating Officer did not collect the required evidence and he has not even contacted the applicant/complainant. Statement of notary advocate, who has attested the agreement, has also not been recorded. No such specific evidence could be pointed out on the basis of which the accused persons may have been summoned by taking cognizance under Section 190(1)(b) Cr.P.C.

13. In view of attending facts and circumstances, it can not be said that the impugned order, by which the protest petition of applicant/complainant has been registered as complaint, is suffering from any patent illegality or error of jurisdiction. There is nothing to show that there has been any abuse of process of court or miscarriage of justice. The application under Section 528 B.N.S.S. lacks merit and thus liable to be dismissed.

14. Accordingly, the application u/s 528 B.N.S.S. is dismissed. Order Date :- 3.4.2025 'SP'/-