MISC. Application No. 712 of 2010 · Uttarakhand High Court · 2010

Mr. Sandeep Kothari, Advocate for the applicants Mr. Amit Bhatt, Addl. GA for the State HON. DHARAM VEER, J. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short, Cr.P.C.), the petitioners/applicants have sought quashing of the order dated 15.6.2010 passed by Addl. Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar, by which the final report dated 19.2.2010 submitted by the police in case crime no.16/2010, relating to offences punishable under Sections 498-A, 323, 504 and 506 of the Indian Penal Code, 1860 (for short, the IPC) and 3/4 of Dowry Prohibition Act, 1961 (for short, the Act), was rejected. Heard learned counsel for the parties and perused the entire material available on file. Brief facts of the case are that respondent no.2 Nirmal Kaur moved an application under Section 156(3) of Cr.P.C., and got registered a F.I.R. No.16/2010 with P.S. Kashipur, relating to offences punishable under Sections 498-A, 323, 504 and 506 of IPC and one u/s 3/4 of the Act 2 against the applicants. Against the said FIR, the applicants filed a writ petition (WPCRL No.24 of 2010) before this Court on which this Court vide order dated 14.1.2010 stayed the arrest of the applicants and directed the husband (applicant no.2) and wife (respondent no.2) to appear before the Court on 22.2.2010. On 22.2.2010, in view of the compromise arrived at between the parties, the above writ petition was allowed and the impugned FIR as well as investigation was quashed. In the meantime, the police submitted final report dated 19.2.2010 in the matter. Thereafter, on 1.4.2010 respondent no.2 moved an application for recalling the order dated 22.2.2010 passed by this Court in WPCRL No.24 of 2010 complaining that the applicant no.2 Amrat Pal Singh has played fraud upon the Court as he back tracked from the compromise and did not take his wife (respondent no.2) with him. On the said application, moved in the aforesaid criminal writ petition, this Court vide order dated 4.5.2010, kept the order dated 22.2.2010 in abeyance. However, since the final report was earlier submitted by the I.O. in the matter, hence, this Court vide order dated 2.6.2010 dismissed the recall application with the observation that the respondent no.2 Nirmal Kaur would be at liberty to file the protest petition before the concerned Magistrate against the final report submitted by the Investigation Officer. Thereafter, the respondent no.2 filed the protest petition against the final report before the Addl. C.J.M., Kashipur, District Udham Singh Nagar, on which, learned Addl. C.J.M., Kashipur, vide his order-dated 15.6.2010 allowed the protest petition of the respondent no.2 and rejected the the final report dated 19.2.2010 and directed the police for further investigation. Against the said order dated

15.6.2010, the applicants have preferred the present C482 application before this Court. Learned counsel for the applicants argued that the order dated 15.6.2010 passed by Addl. Chief Judicial 3 Magistrate, Kashipur is not correct and is not sustainable in the eye of law. I do find force in the argument advanced by learned counsel for the applicants. It is settled law that when a report is placed before the Magistrate, he has the option of adopting one of the three courses 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 cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). In a judgment rendered by Hon(cid:146)ble Apex Court in the case of (cid:147)Minu Kumari & another v. State of Bihar & others(cid:148) reported in (2006) 2 SCC (Cri.) 310, it has been held in para 11 of the said judgment that:- (cid:147)11. When a report forwarded by the police to the Magistrate is placed before him several under Section 173(2)(i) 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 again has 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 cognizance 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 his powers under Section 4 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. (See India Carat (P) Ltd. v. State of Karnataka)(cid:148) In view of the above quoted judgment, it is clear that the three courses are open before the Magistrate (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 cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under section 156(3). In the present case, the learned Addl. Chief Judicial Magistrate by adopting third course, directed the police for further investigation. Hence, in view of judgment of Hon(cid:146)ble Apex Court in case of Minu Kumar (Supra), the order passed by the learned Addl. Chief Judicial Magistrate appears to be perfectly justified and as per law. For the reasons recorded above, there is no force in the application. The C482 application, being devoid of merit, is dismissed in limine. (Stay Application No.781 of 2010 also stands dismissed). RG (Dharam Veer, J.) 27.07.2010