HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 64
Case :- APPLICATION U/S 482 No. – 35628 of 2018 AFR
Applicant :- Hanif Malik
Opposite Party :- State Of U.P. And 5 Others
Counsel for Applicant :- Chandrakesh Mishra,Daya Shankar Mishra
Counsel for Opposite Party :- G.A.,Krishna Dutt Tiwari
Hon’ble Arvind Kumar Mishra-I,J.
Heard Sri Daya Shankar Mishra, learned counsel for the applicant, Sri K.D. Tiwari, learned counsel for opposite party nos.2 to 6, Sri Om Narain Tripathi, learned A.G.A.-I assisted by Sri Bhanu Pratap, Brief Holder for the State and perused the material brought on record.
By way of the instant application, the applicant has sought for quashment of the order dated 08.06.2018 passed by the Chief Judicial Magistrate, Bijnor, in Misc. F.R. Case No.411 of 2017 whereby final report submitted by the police in Case Crime No.70 of 2017 under Sections 498A, Section304B I.P.C. and 3/4 SectionDowry Prohibition Act, Police Station Shivalakala, District Bijnor was treated as complaint case on the protest of the complainant – applicant.
Contention raised on behalf of the applicant is confined to the ambit that from bare perusal of the observation/analysis of the order impugned in the instant application, it is reflective of fact that the Magistrate concerned was not satisfied with submission of the final report as such, has categorically observed that he disagrees with the final report. In that event, the Magistrate was bound to proceed further and could have taken cognizance of the case, instead, he treated the protest petition filed by the applicant as complaint which under circumstances was unfair, unreasonable, unjust and illegal.
Per contra, learned A.G.A. has submitted that in this case, the powers qua conditions requisite for initiation of the proceeding have been specifically laid down in Section 190 (1) (a) (b) and (c) SectionCr.P.C. There are three modes provided; one cannot stick with only one mode of taking cognizance which should be exercised and no other alternative shall be resorted to in a particular situation.
Here disagreeing with the final report does not mean that the material is sufficient to proceed as per evidence collected by the Investigating Officer against the accused for prosecuting them and for ensuring fair trial but the Magistrate concerned was of the view that scrutiny and analysis of facts and evidence can be done in better way by the court (concerned) itself, therefore, the Magistrate exercised powers vested in him under Section 190 (1) (c) SectionCr.P.C. in order to ensure substantial justice to the applicant but the applicant unnecessarily kept on insisting that in the event of disagreeing with the final report would mean that cognizance should be taken straightway of the offence in question under Section 190 (1) (a) SectionCr.P.C. is by no means fair plea.
Considered the rival submissions as well.
Before expressing final opinion, it would be better if background of the case is taken into consideration at this stage. As per protest petition filed by the applicant, the marriage of the deceased Reena was solemnized with opposite party no.2 – Kamal Hasan on 03.12.2015, the husband and in-laws of the deceased were not satisfied with the dowry given at the time of marriage, therefore, they demanded additional dowry in the shape of one car and Rs.2,00,000/- cash and they used to beat the applicant’s daughter – (deceased). The applicant also tried to pacify her daughter, the husband and in-laws but to no avail. Eight months prior to the death of the applicant’s daughter, serious injuries were caused on the head of the deceased and due to which she was suffering from illness and suffered injuries in her mind as well.
On 01.12.2016, the applicant’s daughter – deceased was severely beaten by opposite party nos.2 to 6 due to which she was aborted and gave birth to a stillborn child on 03.12.2016. The applicant visited the house of in-laws of his daughter on 13.02.2017 whereupon the applicant’s daughter described about the aforesaid developments and told fact of stillborn child. Since the physical condition of the applicant’s daughter had badly deteriorated, he took his daughter with him (to his house). She was admitted to the hospital in Moradabad in badly deteriorated condition, thereafter she was taken to Loknayak Hospital Delhi where she was got admitted on 26.02.2017, whereafter, she died on 07.03.2017 in the hospital on account of injuries being caused to her previously on her head. The applicant went to lodge the report at Police Station Shivalakala, District Bijnor on 09.03.2017 but the same was neither written nor lodged at the Police Station concerned. The applicant then presented application to the Superintendent of Police, Bijnor on 15.03.2017 but no action was taken.
The applicant being placed under compelling circumstances has moved an application under Section 156(3) Cr.P.C. which was directed to be registered and investigated into by the police whereupon the case was registered at Case Crime No.70 of 2017, under Sections 498A, Section304B I.P.C. and 3/4 SectionDowry Prohibition Act, at Police Station Shivalakala, District Bijnor on 24.04.2017. The case was investigated into and final report was submitted by the Investigating Officer in this case.
In the wake of above fact situation, contention raised on behalf of the applicant is to the ambit that post mortem examination report specifies 28 stitches on the head of the deceased, extending in an area of 12 cm x 8 cm which shows that the death of the deceased Reena was ‘unnatural’ and it occurred on account of injuries being caused to the deceased by the aforesaid opposite parties.
Next contended that under facts and circumstances of the case, proper investigation was not made, statement of only certain witnesses and nearby residents were recorded and final report no.411 of 2017 was filed which culminated into Case No.2605 of 2018 Hanif Vs. Kamal Hasan and others. Notice was issued to the applicant and he filed a detailed protest petition whereby the Magistrate after observing that in view of the post mortem examination report and statement given to the S.D.M. by the complainant at the time of conduction of the post mortem examination, the incident of assault/injury being caused to the deceased by opposite party nos.2 to 6 was found to be incorrect.
The point raised on behalf of the complainant-applicant for consideration basically relates to taking of cognizance of the case on the police report itself.
Learned counsel for the applicant has vehemently submitted that once the Magistrate was not in agreement with the submission of the final report then he could have proceeded straightway and could have taken cognizance of the offence and nothing precluded him from adopting that course of action, but the Magistrate, all of sudden, came out with another version and treated the protest petition as complaint which under facts and circumstances of this particular case is ex-facie illegal and not sustainable in the eye of law.
The contention so raised is rejected, for specific reason that it is nowhere provided in the Code of Criminal Procedure, 1973 that once a Magistrate while disagreeing with the final report should invariably take cognizance of the offence on the police report itself by exercising powers vested in him under Section 190 (1) (a) Cr.P.C. but it is always open to the Magistrate exercising powers vested in him by law while taking cognizance of offence as provided under sub-sections (a) (b) (c) of Section 190 (1) Cr.P.C.
Here the point in question is that the material collected during course of the investigation did not justify taking cognizance of the case as the material was not sufficient for proceeding further. However, considering averments made in the protest petition, the Magistrate was of the view that the material produced can be scrutinized in better way on the judicial side and, with that view in mind, in order to secure ends of justice, considered the protest petition as complaint and thus exercised powers vested in him under Section 190 (1) (c) SectionCr.P.C., which Section is very much extracted hereinbelow for ready reference;
“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 taken cognizance of any offence.
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.”
Bare reading of the aforesaid sub-section (c) of Section 190 (1) SectionCr.P.C. gives unequivocal expression and impression that the Magistrate is competent to take cognizance upon “information received from any person other than a police officer”. Therefore, cognizance of case in shape of the protest petition falls under this category (190 (1) (c) SectionCr.P.C.). Entirety of the facts and circumstances of this case in hand when taken as a whole reflects that the substantial justice has been tried to be done to the applicant and it is up to the complainant-applicant to cooperate with the Court and the prosecution in order to unravel the truth.
For the reasons aforesaid, I do not find any infirmity or illegality in the order impugned dated 08.06.2018 passed by the Chief Judicial Magistrate, Bijnor, in Misc. F.R. Case No.411 of 2017 whereby the protest petition has been converted into complaint case and accordingly cognizance has been taken against opposite party nos.2 to 6.
Consequently, the instant application being devoid of merit is dismissed.
It is made clear that observation made in this order shall have no bearing on the merits of the case and shall not prejudice the trial court while deciding the case on merits.
Order Date :- 30.4.2019