Manoj & Ors. v. State of Uttaranchal & Anr.

for the State and Mr. MS Tyagi, Advocate for the respondent no.

#2. This petition under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC) has been filed for quashing the summoning order dated 22.7.2005 as well as the entire proceedings of Complaint Case No. 56/2004, Smt. Moorti v. Manoj & Ors. under Section 436/440/506 IPC pending in the Court of Judicial Magistrate, Laksar. Facts, in brief, are that respondent no. 2 Smt. Moorti lodged an FIR with PS Laksar on 22.1.2004 at 3.30 pm with the averments that the petitioners set her hut on fire at 8 pm on

21.1.2004 when she was sitting in the hut along with her children and also threatened to teach her a lesson. Petitioners also committed marpit with her husband, who suffered fracture injury and got admitted in Roorkee Hospital. The complainant somehow managed to save herself and her children, but the household articles burnt in the said fire. Many people gathered there who put the fire off. The petitioners while leaving the place of occurrence also threatened her that next time she would be burnt alive. Therefore, the respondent no. 2 lodged the FIR against the petitioners. On the basis of this FIR, a case was registered against the petitioners. After the investigation, the I.O. submitted a final report and the respondent no. 2 filed a protest petition against it. Judicial Magistrate, Laksar vide order dated 2

18.2.2005 rejected the final report and the case was directed to be registered as a complainant case. Learned trial court after recording the statement of the complainant under Section 200 CrPC, came to the conclusion that a prima facie case under Section 436, 440, 506 IPC is made out against the petitioners and accordingly summoned them vide order dated 22.7.2005. Aggrieved by the order dated 22.7.2005, the petitioners preferred a criminal revision before the Sessions Judge, Haridwar which dismissed as not maintainable vide order dated

10.8.2005. Learned Counsel for the petitioners argued that the impugned summoning order is not as per law and the petitioners have been falsely implicated in this case. I do not find any substance in the argument of learned 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 either (1) accept the report and take cognizance of the offence and issue process, or (2) may 3 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 the issue of process to the accused. The Magistrate is not bound in such a situation to 4 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 summong order dated 22.7.2005, statement recorded under Section 200 CrPC 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 JM, Laksar 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 28.10.2005 stands vacated. (Dharam Veer, J.)

2.8.2010 PRABODH