Shanno v. Mohd. Akhtar and another) arising out of F.R. No
Case Details
Court No. - 82 Case :- APPLICATION U/S 482 No. - 22686 of 2021 Applicant :- Mohd. Akhtar And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Bhuvnesh Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Umesh Kumar,J. Heard learned counsel for the applicants and learned AGA for the State and perused the material placed on record. Applicants, by way of filing this application under Section 482 Cr.P.C., have sought to quash impugned order dated 02.03.2019 with its all consequential effects passed by Additional Chief Judicial Magistrate, Court No.3, Bijnor in Misc. Case No.111 of 2018 (Shanno Versus Mohd. Akhtar and another) arising out of F.R. No.1 of 2018 in Case Crime No.390 of 2017 under Sections 376-D, 452 and 506 IPC, Police Station Chandpur, District Bijnor as well as quash the impugned order dated 26.11.2019 passed by Additional Sessions Judge/F.T.C.-I, Bijnor in Criminal Revision No. 110 of 2019 (Sharafraj and another Versus State of U.P. and another). The brief facts giving rise to the present case are that father of applicant no.2 filed an application no.800 of 2016 under Section 156(3) Cr.P.C. before Chief Judicial Magistrate, Bijnor
Facts
on 20.12.2016 for lodging first information report against Khurshid alias Shaitan, Illa alias Tahira Answari, Sikandar and SHO, Chandpur.The aforesaid application was treated by learned Magistrate as complaint case vide its order dated 12.01.2017. The applicant no.1 is close relative of applicant no.2 and he is the witness of aforesaid complaint. After coming to know about aforesaid application under Section 156(3) Cr.P.C. in retaliation of aforesaid case, present F.I.R. against applicants has been lodged by opposite party no.2 who is real sister of accused-Illa alias Tahira Ansari vide Case Crime No.390 of 2017 under Sections 452, 376-D and 506 I.P.C., Police Station Chandpur, District Bijnor, alleging therein that the applicants were having ill eye at her since long and they used to make sarcastic comments upon her. On the date of alleged incident i.e. on 11.05.2017 all the family members of opposite party no.2 have gone to relatives place and she was all alone in the house. At about 3.00 p.m. the accused-applicants entered her house and committed rape upon her one by one on knife point. When the main door was knocked, they fled through another door. After lodging of F.I.R., her statement under Sections 161 and 164 Cr.P.C. were recorded in which she supported the prosecution story. Medical examination on her body was also conducted in which no mark of injury was found on her body or private parts. Hymen was old torn and healed. However, the investigating officer submitted final report. On protest petition being filed, final report was rejected and the learned Magistrate took cognizance on the basis of material available on case diary collected during investigation and summoned the applicants to face trial under aforesaid Sections vide order dated 02.03.2019. The applicants preferred criminal revision before Additional Sessions Judge/F.T.C.-I, Bijnor which was rejected vide impugned order dated 26.11.2019. Both the orders passed by courts below are under challenge in the present application.
Legal Reasoning
Petition which can not be gone into by this Court in exercise of jurisdiction under Section 482 Cr.P.C. In support of their submission, they have relied upon the decision of Hon'ble Supreme Court in the case of State of Odisha Vs. Pratima Mohnati (Crl. Appeal Nos. 1455-1456 of 2021 decided on 11.12.2021). The main issue which arises in this application is with regard to the manner of taking cognizance and issuing process in accordance with prescribed procedure under the Code and as to whether detailed and elaborate reasons are required to be recorded at the stage of taking cognizance or issuing of process. After completion of the stage of investigation and placing of the final report by the police to a competent Magistrate, the stage of trial is to begin. As a precursor of the stage, the steps which are envisaged under the Code are as follows : (i) taking cognizance of the offence; (ii) ascertaining whether any prima facie case exists against the accused person; and in case it exists, then (a) to issue process against the accused person in order to secure his/their presence at the time of trial, (b) to supply to the accused person copies of police statements; (iii) consolidating different proceedings pertaining to the same case; and (iv) if the case is exclusively triable by a Sessions Court, committing the case to that court. Chapter XIV of the Code relates to conditions requisite for initiation of proceedings. Section 190 provides as to when a Magistrate may take cognizance of any offence. Section 190 reads as follows :- "190. Cognizance of offences by Magistrates.- (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." A complaint referred to under sub-section (1) (a) of Section 190 is defined under Section 2 (d) of the Code, which is as follows:- "(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant." The police report referred to in sub-section (1) (b) has been defined under Section 2 (r), as meaning a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173. The police report refers to be the report forwarded by the police on completion of the investigation. The question as to when cognizance of an offence can be held to have been taken under Section 190 of the Code came up for consideration in Darshan Singh Ram Kishan Vs. The State of Maharashtra (1971) 2 SCC 654 where it was held that cognizance takes place at a point when a Magistrate first takes judicial notice of an offence, whether on a complaint, or on a police report, or upon information of a person other than a police officer. The observations made in the judgment in this regard are as follows :- "8. As provided by Section 190 of the Code of Criminal Procedure, a Magistrate may take cognizance of an offence either, (a) upon receiving a complaint, or (b) upon a police report, or (c) upon information received from a person other than a police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report." The meaning of expression 'taking cognizance' came up for consideration in Fakhrudddin Ahmad Vs. State of Uttaranchal and another, reported in (2008) 17 ACC 157 and it has been held that the expression being of indefinite nature, it was neither practicable nor desirable to precisely define as to what is meant by 'taking cognizance' and the question as to whether the learned Magistrate has taken cognizance of an offence would depend upon the facts and circumstances of the case so much so the mode under which the case is sought to be instituted and while deciding the issue the Apex Court has taken notice of earlier decisions in Ajit Kumar Palit Vs. State of W.B. AIR 1963 SC 765, Emperor Vs. Sourindra Mohan Chuckerbutty ILR (1920) 37 Cal 412, Chief Enforcement Officer Vs. Videocon International Ltd. (2008) 2 SCC 492, Supdt. & Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee AIR 1950 Cal 437 and R.R. Chari Vs. State of U.P. AIR 1951 SC 207. In the case of State of Gujrat Vs. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539 his Lordships of Apex Court in para 16 has held that; "It is well settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused." The issue whether the Magistrate while issuing process under Section 190 (1) (b) Cr.P.C. the Magistrate is only to be satisfied whether there is sufficient grounds for proceedings and not whether there is sufficient grounds for conviction. Whether the evidence adequate can be determined only at the trial and not at the stage of enquiry. The 'summon' is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate. The scope of consideration at the stage of summoning would be as to whether material produced before the learned Magistrate primafacie discloses commission of an offence and a detailed inquiry after sifting of evidence is not to be looked in to. The guilt and innocence is to be determined in the trial and at the stage of summoning it is not necessary delve deep into various aspects rather the Court has only to consider whether materiel on record primafacie discloses commission of an offence and nothing more. The controversy involved in this application is no more in res- integra and it is well settled that at the stage of summoning the Magistrate would not be required to enter into a detailed discussions either on the merit or demerits of the case. In determining the question whether any process is to be issued are not what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding. I have also gone through the impugned order dated 02.03.2019 passed by learned Additional Chief Judicial Magistrate, Court No.3, Bijnor summoning the applicants to face trial and order dated 26.11.2019 passed by the revisional court and I find that the learned courts below have taken much pain in coming to the conclusion that the applicants are liable to be summoned to face trial under Section 376-D, 452 and 506 I.P.C. and no infirmity or illegality has been pointed out by the learned counsel for the applicants. In the entire order basis of passing of order is not affidavit or application moved by the complainant/informant as argued by learned counsel for the applicants. The courts below have interpreted and visualized entire evidence submitted by the investigating officer through final report. In view of the discussions made herein before, I am of the considered view that the learned Chief Judicial Magistrate, Bijnor as well as revisional court below, has not committed any illegality or infirmity in summoning the applicants to face trial under Section 376-D, 452 and 506 I.P.C. in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. The application under Section 482 Cr.P.C. lacks merit and it is, accordingly, dismissed. Order Date :- 9.5.2022 MN/- Digitally signed by MAHENDRA NATH Date: 2022.05.17 14:35:51 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Learned counsel for the applicants has argued that the applicant no.1 is very old person aged about 68 years and he has been falsely implicated in the present offence due to land dispute. The applicants neither entered the house of opposite party no.2 at the alleged date and time nor sexually assaulted her in any manner and all the allegations are absolutely false. It also argued that during investigation opposite party no.2 was medically examined in which no injury was found on her body and Doctor could not give any definite opinion regarding sexual assault. The medical report does not corroborate alleged incident which belies entire prosecution story. The learned Magistrate has illegally and wrongly passed impugned order dated 02.03.2019 whereby he has mechanically rejected the final report and taken cognizance straightway against the applicants under Section 190(1)(b) of Cr.P.C. and summoned the applicants for facing trial. The Additional Session Judge has also without appreciating provisions of law and material available on record has mechanically rejected the revision by its order dated 26.11.2019. From perusal of the impugned orders, it is crystal clear that both the courts below have passed the impugned orders against the provisions of law, thus the impugned orders are absolutely illegal and not sustainable in the eyes of law. Learned counsel for opposite party no.2 and learned A.G.A. have vehemently opposed the submissions made on behalf of the applicants. Learned A.G.A. as well as learned counsel for opposite party no.2 have supported the impugned orders passed by learned courts below, by submitting that the arguments advanced on behalf of the applicants relate to either factual or touching the reliability and genuineness of the F.I.R./Protest