Jagat Ram v. State of Uttarakhand

Statements of the aforesaid eyewitnesses named in the FIR were also recorded by the I.O. during the course of investigation, who have supported the version made in the FIR. But after the investigation, the Patwari and I.O. of the case submitted a final report on 30.10.2000. Against the said final report, respondent no. 3 filed a protest petition enclosing therewith the affidavits of eyewitnesses Jeevan Singh and Rajendra Singh. On the basis of this, the CJM, Almora rejected the final report and directed for reinvestigation by some other Investigation Officer or by some senior officer. After the reinvestigation, Patwari again submitted a final report and submitted a chalani report against the complainant Ranjeet Singh under Section 182 IPC, against which the complainant/respondent no. 3 filed his objections. Thereafter the CJM, Almora on the basis of the statements of 2 witnesses recorded under Section 161 CrPC and the case diary, quashed the proceedings under Section 182 IPC against the complainant/respondent no. 3 and rejected the final report vide order dated 17.7.2004 and observed that on the basis of the aforesaid statements and the case diary, a prima facie case under Section 504 and 506(2) IPC is made out against the petitioners and accordingly summoned the petitioners. Revision against the aforesaid order dated 17.7.2004 was also dismissed by the Sessions Judge, Almora vide his order dated 1.2.2005. Thereafter when the petitioners did not appear before the trial court after service of the summons on them, bailable warrants were issued against the petitioners by the order dated

15.3.2005. Learned Sr. Counsel for the petitioners argued that the aforesaid impugned orders are not as per law. I do not find any substance in the argument of learned Sr. Counsel for the petitioners. It is settled law that when a report to the effect that no offence appears to have been committed is place before the Magistrate after investigation by the Investigating Officer, the Magistrate has option of adopting one of the three courses open i.e. the Magistrate may either (1) he may accept the report and drop the proceedings; 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). Reliance has been placed on the judgment delivered by the Hon’ble Apex Court in (2006) 2 SCC (Cri) 310 Minu Kumari & Anr. v. State of Bihar & Ors., wherein at para 11, the Hon’ble Supreme Court has observed as under: “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 3 either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceedings, 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 proceedings; 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 option 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 190(1)(b) and direct 4 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.” Having considered the arguments advanced by learned counsel for the petitioners; perusal of impugned orders dated

17.7.2004 and 15.3.2005 and other papers available on record, I am of the view that a prima facie case against the petitioners under the aforesaid sections is made out. Therefore, in view of the aforesaid principle of law propounded by the Hon’ble Apex Court, the cognizance taken by the CJM, Almora and order for the issue of process to the accused/petitioners are correct and as per law and I do not find any illegality, irregularity or impropriety in the aforesaid impugned orders. Moreover, the dispute involves factual questions which cannot be decided by this Court. The dispute can be decided only after adducing the oral and the documentary evidence by the parties before the trial court. It cannot be decided by this Court only on the basis of papers filed on the record and in the present case there is neither any miscarriage of justice nor any abuse of process of Court. The petition lacks merit and is liable to be dismissed. Accordingly, the petition is dismissed. Interim order dated 24.3.2005 stands vacated. (Dharam Veer, J.)

8.7.2010 PRABODH