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Prateek Gupta vs State Of U.P. And Another on 6 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgment Reserved on 15.7.2019

Judgment Delivered on 06.8.2019

Court No. – 70

Case :- APPLICATION U/S 482 No. – 24770 of 2019

Applicant :- Prateek Gupta

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Mohd. Rashid Siddiqui,Anoop Trivedi (Senior Adv.),Ramanuj Tiwari

Counsel for Opposite Party :- G.A.

Hon’ble Sanjay Kumar Singh,J.

1. Heard Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Ramanuj Tiwari and Mohd. Rashid Siddiqui, learned counsels for the applicant and Sri N.D. Rai, learned Additional Government Advocate-Ist, assisted by Sri Rabindra Kumar Singh, learned Additional Government Advocate and Sri Prashant Kumar Singh, learned Brief holder appearing on behalf of the State of U.P./opposite party no.1 and perused the record with the assistance of learned counsels for the parties.

2. This application under Section 482 Cr.P.C. has been preferred by the accused/applicant (Prateek Gupta) with a prayer to quash the order dated 6.3.2019 passed by the Chief Judicial Magistrate, Aligarh in Case No. 5471A of 2017 (State Vs. Prateek Gupta and others), under Sections 498A, 323, 504, 506, 307, 328, 427, 316 I.P.C., ¾ Dowry Prohibition Act and Section 66 Information Technology Amendment Act, Police Station Quarshi, District Aligarh, whereby the discharge application under Section 227 Cr.P.C. moved by the applicant before the Magistrate has been rejected on the ground that same is not maintainable before the Magistrate, as the case is exclusively triable by the Court of Session and judgment and order dated 15.5.2019 passed by the Session Judge, Aligarh in Criminal Revision No. 130 of 2019 against the order dated 6.3.2019 of Chief Judicial Magistrate, whereby revision preferred by the applicant has been rejected confirming the order dated 6.3.2019.

3. This case has checkered history of litigations. Filtering out unnecessary details, the basic facts, in brief, for the purpose of controversy involved in the present matter are that the applicant-Prateek Gupta and Monica Jindal (daughter of opposite party no.2) were married on 5.12.2015, but the said marriage was not successful resulting into several litigations between the parties on account of acrimonious relations between them. As a result thereof, on 22.7.2016, Arun Kumar Agarwal (opposite party no.2/father-in-law of the applicant) lodged FIR against the applicant and nine other family members at Police Station-Quarshi, District Aligarh, registered as case crime no. 0609 of 2016, under Sections 498A, 323, 504, 506, 307, 328, 427, 316 I.P.C., ¾ Dowry Prohibition Act and Section 66 Information Technology Amendment Act. The Investigating Officer after investigation submitted charge-sheet against all the ten accused persons on two different dates i.e. 11.4.2017 and 12.7.2017. The charge-sheet dated 11.4.2017 was submitted against four accused persons namely Prateek Gupta (applicant), Shashank Gupta, Smt. Mithlesh Gupta and Mahesh Chandra Gupta, on which, the Chief Judicial Magistrate took cognizance on 19.4.2017 registering the same as Case No. 5471 of 2017. Charge-sheet dated 12.7.2017 was submitted against six accused persons namely, Rashmi, Babloo @ Ashish Gupta, Rajni, Pappu @ Manoj Gupta, Sunaina and Gaurav Gupta, on which the Chief Judicial Magistrate, Aligarh took cognizance on 24.7.2017 registering the same as case no. 9373 of 2017.

4. The applicant preferred an Application under Section 482 Cr.P.C. No. 21340 of 2017 for quashing the charge-sheet dated 11.4.2017 against him in Miscellaneous Case No. 5471 of 2017 arising out of Case Crime No. 0609 of 2016, U/s 498A, 323, 504, 506, 328, 307, 427, 316 IPC, section 3/4 D. P. Act and section 66 of Information Technology Amendment Act, Police Station-Quarsi, District Aligarh pending in the concerned court below. This Court refused to quash the charge-sheet against the applicant.

The said application of the applicant was disposed of vide order dated 14.7.2017, which is reproduced herein-below:-

“Heard learned counsel for the applicant, Sri Ramanuj Tripathi, the learned counsel for opposite party no. 2 and learned A.G.A. for the State.

The present application under Section 482 Cr.P.C. has been filed for quashing the chargesheet in misc. case no. 5471 of 2017 arising out of case crime no. 0609 of 2016, U/s 498A, 323, 504, 506, 328, 307, 427, 316 IPC and section 3/4 D. P. Act and section 66 of Information Technology Amendment Act, P.S. Quarsi, District Aligarh pending in the concerned court below.

The contention of the counsel for the applicant is that no offence against the applicant, who is the husband is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.

From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage.

After hearing learned counsel for the parties and after perusing the averments made in the present application, no case for any interference has been made out. Accordingly, the prayer, as made above, is refused.

However, without expressing any opinion on the merits of the case, it is directed that in case the applicant appears and surrenders before the courts below within 45 days from today and applies for bail, his prayer for bail shall be considered and decided on its own merits in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon’ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 45 days from today or till the applicant surrenders and applies for bail, whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the courts below within the aforesaid period, coercive action shall be taken against him.

With the aforesaid direction, the application U/s 482 is disposed off finally.”

5. Thereafter, the applicant made a complaint to the Director General of Police enter-alia mentioning that the fair investigation has not been done in this case. On the complaint and pursuation of the applicant, directions were issued for further investigation by the higher authorities of Police, while Magistrate concerned had already taken cognizance on the police reports/charge-sheets under Section 173(2) Cr.P.C. dated 11.4.2017 and 12.7.2017.

6. In view of above, after taking cognizance by the Magistrate concerned in the matter, further investigation was conducted by the different Investigating Officer, who has submitted supplementary report under Section 173(8) Cr.P.C. in June, 2018, by which, some sections were required to be deleted from earlier primary reports under Section 173(2) Cr.P.C. and as per the opinion of new Investigating Officer, the evidence collected in further investigation makes out a case only under Sections 498A I.P.C. and 3/4 D. P. Act against the present applicant-Prateek Gupta only. In the said supplementary report under Section 173(8) Cr.P.C., the Investigating Officer has exonerated all the nine accused persons named in the FIR, against whom earlier charge-sheets/police reports under Section 173(2) Cr.P.C. were submitted. On the said supplementary report, the Chief Judicial Magistrate, Aligarh passed an order dated 9.7.2018 to keep the said supplementary report under Section 173(8) Cr.P.C. on record. The said order dated 9.7.2018 was not challenged.

7. At this stage, applicant instead of complying the directions given in the order dated 14.7.2017 of this Court, again preferred an Application under Section 482 Cr.P.C. No. 40080 of 2018 for quashing of the proceedings pending in the form of Case No. 5471 of 2017 on the basis of supplementary report under Section 173(8) Cr.P.C., but again this Court did not quash the proceeding. The said second application under Section 482 Cr.P.C. was disposed of by the co-ordinate Bench of this Court vide order dated 6.12.2018. The directions given in the order dated 6.12.2018 is reproduced herein-below:-

“This application is disposed of giving liberty to the applicant to apply before the Magistrate concerned for discharge in view of the two reports, the primary report and the supplementary report through counsel and it would be for the Magistrate concerned to take appropriate decision in accordance to law. It would also be open to the Magistrate to examine the maintainability of the application. While doing so the Magistrate concerned will afford due opportunity to the prosecution as also to the complainant in addition to the applicant. Subject to final outcome of the said application, the matter will proceed further in accordance to law.

It is further provided that the applicant shall file the application within two weeks from today, whereafter the Magistrate concerned will dispose of the same within a period of six weeks thereafter, strictly in accordance to law, after affording due opportunity to all the concerned parties.”

8. It is apposite to mention that vide order dated 6.12.2018 of this Court, the applicant was directed to move discharge application through counsel within two weeks i.e. up to 20.12.2018, but the discharge application under Section 227 Cr.P.C. was moved by the applicant much after on 1.2.2019. Since, in the order dated 6.12.2018 of this Court, it was observed that it would also be open to the Magistrate concerned to examine the maintainability of the discharge application, therefore, first of all Chief Judicial Magistrate has considered the discharge application under Section 227 Cr.P.C. moved by the applicant, on the point of its maintainability and rejected the same by impugned order dated 19.3.2019 holding that since on primary report/charge-sheet under Section 173(2) Cr.P.C., cognizance has already been taken by the Magistrate on 19.4.2017 for the offence under Sections 498A, 323, 504, 506, 307, 328, 427, 316 I.P.C., ¾ Dowry Prohibition Act and Section 66 Information Technology Amendment Act against the accused-applicant and Sections 307 and 316 IPC mentioned in the primary report/charge-sheet are triable by the court of Session, therefore, discharge application under Section 227 Cr.P.C. is not maintainable before the Magistrate but the same is maintainable only before the Court of Session. Finding has also been recorded that the Magistrate has no jurisdiction to hear and decide the discharge application on merit in the cases triable by the Court of Session in the light of law laid down by the Apex Court in case of Ajay Kumar Pramar Vs. State of Rajasthan AIR 2013 SC 633.

9. The applicant preferred Criminal Revision No. 130 of 2019 against the aforesaid impugned order dated 6.3.2019, but the same has also been dismissed by the impugned judgment and order dated 15.5.2019 of the Sessions Judge, Aligarh confirming the order dated 6.3.2019 passed by the Chief Judicial Magistrate.

10. In the aforesaid background, the applicant again preferred present application under Section 482 Cr.P.C. against the aforesaid orders dated 6.3.2019 and 15.5.2019. Sri Anoop Trivedi, learned Senior Advocate assailing the aforesaid impugned orders dated 6.3.2019 and 15.5.2019 submitted that since the supplementary report under Section 173(8) Cr.P.C. has been submitted by the Investigating Officer under Section 498A and ¾ D.P. Act only against the applicant with the observation that all other sections of primary report under Section 173(2) Cr.P.C. against the applicant are liable to be deleted, therefore, the cognizance order, which has already been taken by the Magistrate concerned on the primary report under Section 173(2) Cr.P.C., shall be deemed to be nullity and non existent for all practical purposes. It is next submitted that the Magistrate concerned before committing the case under section 209 Cr.P.C. to the Court of Session has to conduct an enquiry considering all the materials brought on record by means of primary report under Section 173(2) Cr.P.C. as well as supplementary report under Section 173(8) Cr.P.C. and after conducting the said enquiry, Magistrate has to pass a reasoned order deciding whether the case is triable by the Court of Session or the court of Magistrate. Sri Anoop Trivedi, Senior Advocate further submitted that the Magistrate without conducting proper enquiry and without considering primary report under Section 173(2) Cr.P.C. together with supplementary report under Section 173(8) Cr.P.C. alongwith their materials, cannot commit the case to the Court of Session on the basis of police report under Section 173 (2) Cr.P.C.. It is also submitted that if the Magistrate is of the view that the case is triable by Session, then in view of Section 193 Cr.P.C., the Magistrate can neither take cognizance nor can issue summons to the accused. The learned counsel for the applicant summarizing his submissions submitted that after filing of supplementary report under Section 173(8) Cr.P.c., the case has become triable by Magistrate on the basis of materials filed alongwith supplementary report. The primary report under Section 173(2) Cr.P.C. and cognizance order thereon has become meaningless, nullity and non-existent. Last plank of submission is that since the Magistrate concerned neither conducted inquiry in order to ascertain that which evidence is acceptable or not acceptable and which evidence is reliable or not reliable nor passed order considering the primary report together with supplementary report and materials enclosed with the same in order to reach the conclusion whether the case is triable by the Magistrate or triable by the Court of Session, therefore, the impugned order dated 6.3.2019 is not sustainable.

11. Per contra, Sri N.D. Rai, learned Additional Government Advocate-Ist assisted by Sri Rabindra Kumar Singh, learned AGA and Sri Prashant Kumar Singh, learned Brief holder vehemently opposed and refuting the submissions advanced on behalf of the applicant submitted that earlier application under Section 482 Cr.P.C. No. 21340 of 2017 preferred by the applicant for quashing the charge-sheet in the aforesaid case has been dismissed on 14.7.2017 by this Court and applicant was directed to appear and surrender before the Court below within 45 days and to apply for bail but he did not surrender before the court concerned. It is next submitted that admittedly cognizance on police reports/charge-sheet dated 11.4.2017 and 24.7.2017 under Section 173(2) Cr.P.C. had already been taken by the Magistrate concerned prior to order for further investigation in the matter. On submitting the supplementary report under Section 173(8) Cr.P.C. order dated 9.7.2018 has been passed by the Chief Judicial Magistrate, Aligarh accepting the said supplementary report on record. It is vehemently submitted that the supplementary report under Section 173(8) Cr.P.C. filed after taking cognizance of the offence cannot be taken into consideration afresh at this stage by the Magistrate concerned. He further submits that the appreciation of evidence after submission of supplementary report under section 173(8) Cr.P.C. by the Magistrate is impermissible. The Magistrate has no jurisdiction to go into the merit and demerit of the case and to reach the conclusion as to which evidence is acceptable or not acceptable and which evidence are reliable or not reliable. It is also submitted that the primary report under Section 173(2) Cr.P.C. has been submitted under Sections 498A, 323, 504, 506, 328, 307, 427, 316 IPC, Section ¾ D.P. Act and Section 66 Information Technology Amendment Act, therefore, the case is triable by the court of Session, and the Magistrate is bound by law to commit the case to the Court of Session under Section 209 Cr.P.C., but the difficulty in this case is that the accused-applicant is not appearing/surrendering in the Court, therefore, the Magistrate is not in position to comply the provisions of Section 207 Cr.P.C. As such, the commitment of the case to the Court of session is being lingered on, on account of non-compliance of Section 207 Cr.P.C.

It is also submitted by Sri N.D. Rai, learned AGA-Ist that merely by filing the supplementary report under Section 173(8) Cr.P.C., neither the primary report under Section 173 (2) Cr.P.C. nor cognizance order, which has already been taken, will be effected in any manner. Lastly, it is submitted that under the facts and circumstances of the case, there is no illegality in the impugned orders dated 6.3.2019 and 15.5.2019. Discharge application of the applicant under Section 227 Cr.P.C. before the Magistrate is not maintainable and the present application is liable to be dismissed being devoid on merit in the light of judgment of Apex court in case of Ajay Kumar Parmar Vs. State of Rajastahan (supra).

12. After having heard the arguments of learned counsel for the parties at length, before delving into the issue, it would be appropriate to set out and discuss the provisions of Sections 173, 190, 193, 207, 209 Cr.P.C.

“173. Report of police officer on completion of investigation.

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, weather with or without sureties;

(g) whether he has been forwarded in custody under section 170;

(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order- for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate alongwith the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject- matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub- section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2).

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.

193. Cognizance of offences by Courts of Session. Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173:

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;]

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

Uttar Pradesh:

In Section 209, for clauses (a) and (b), substitute the following clauses and shall be deemed always to have been substituted, namely:-

“(a) as soon as may be after complying with the provisions of Section 207, commit the case to the Court of Session;

(b) subject to the provisions of the Code relating to bail, remand the accused to the custody until commitment of the case under clause (a) and thereafter during and until the conclusion of the trial.”

[Vide Uttar Pradesh act 16 of 1976, sec. 6 (w.e.f. 1.5.1976]

13. Section 190 Cr.P.C. deals with cognizance of offence by Magistrate. It empowers any Magistrate of the Ist Class and any Magistrate of the IInd class specially empowered under sub-section (2) may take cognizance “of any offence” under the circumstances mentioned in Section 190(1)(a) (b) and (c).The expression “of any offence” “clearly shows that no restriction is imposed on the Magistrate that Magistrate can take cognizance only for the offences triable by Magistrate Court and not in respect of offences triable by the Court of Session, therefore, it is clear that the Magistrate has power to take cognizance of any offence which is triable by the Court of Session also.

14. Section 193 Cr.P.C. empowers Court of Session to take cognizance of offence states that the Court of Session shall not take cognizance of any offence, as the Court of original jurisdiction, unless the case has been committed to it by the Magistrate. The language of Section 193 Cr.P.C. very clearly indicates that once the case is committed to the Court of Session by the Magistrate, the Court of Session assumes original jurisdiction.

15. In view of above, it is clear that if the cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The provisions of Section 209 Cr.P.C. will, therefore, have to be understood as the Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report under Section 173(2) Cr.P.C. that the case was triable by the Court of Session. It is well settled that there cannot be any part cognizance of the offence being taken by the Magistrate and part cognizance being taken by the Sessions Judge. It is also well settled that the Magistrate is not to act merely as post office and commit the case to the Court of Session but he is also empowered to take cognizance, issue process to summon the accused and thereafter commit the case to the Court of Session.

16. Section 207 of the Cr.P.C. provides for supply to the accused of copy of police report and other documents and in fact, only upon complying the requirement of Section 207, a Magistrate can commit a case to the Court of Session under section 209. Section 208 is similar provision applicable to sessions cases instituted upon private complaints. Such compliance is condition precedent for commitment of the cases to the Court of session. If the copies of the documents mentioned in Section 207 are not supplied to the accused either in full or in part, he cannot effectively defend himself before the trial Court, namely, Sessions Court. The opening words of Section 209 Cr.P.C. are that “when the accused appears or is brought before the Magistrate”, in that case the Magistrate can commit the case, if the offence is triable by the Court of session. In view of above, it is clear that without securing the presence of the accused, compliance of Sections 207, 208 and 209 Cr.P.C. cannot be done.

17. In the matter of Sanjay Gandhi v. Union of India and others (1978) 2 SCC 39, the Apex Court while delineating the scope of enquiry under Section 209 of the present Code have held that under the new Code in cases where offence is triable exclusively by the Court of Session, the Committing Magistrate has no power to discharge the accused and observed as under: –

“3. … it is not open to the committal court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament’s purpose in remoulding Section 207A (old Code) into its present non- discretionary shape. Expedition was intended by this change and this will be defeated successfully if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session. Assuming the facts to be correct as stated in the police report, if the offence is plainly one under Section 201 IPC, the Magistrate has simply to commit for trial before the Court of Session. If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect. Sri Mulla submits if the Magistrate’s jurisdiction were to be severely truncated like this the prosecution may stick a level mentioning a Sessions offence (if he may use that expression for brevity’s sake) and the accused will be denied a valuable opportunity to prove his ex-facie innocen. There is no merit in this contention. If made-up facts unsupported by any material are reported by the police and a sessions offence is made to appear, it is perfectly open to the Sessions Court under Section 227 Cr.P.C. to discharge the accused. This provision takes care of the alleged grievance of the accused.”

18. In the case of Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Ashutosh Ghosh and others (1979) 4 SCC 381, Supreme Court considering the provisions contained in the new Code has held that under the Code of Criminal Procedure, 1973 (new Code), the committing Court need not take any evidence but has only to see whether the case is exclusively triable by the Court of Session and has to commit the case to the Court of Session. It was observed in paragraph 3 of the report as under: –

“3. In view of the clear language enshrined in this proviso, it is obvious that the new Code will now apply to the proceedings before the committing Magistrate. Under the new Criminal Procedure Code the committing Court need not take any evidence but has only to see whether the case is exclusively triable by the Court of Session which undoubtedly it is, in view of the allegations made against the respondents. The Magistrate, therefore, will now commit the case to the Court of Session. It will, however, be open to the respondents to urge at the time of the framing of the charge before the Sessions Judge any legal plea that is open to them which will be duly considered by the Sessions Court. We would also like to make it clear that the Sessions Judge shall decide the case of the accused untrammeled and uninfluenced by any observations made by the High Court in its judgment.”

19. The Apex Court in case of Ajay Kumar Parmar Vs. State of Rajasthan AIR 2013 SC 633 has held that:-

“8. In Sanjay Gandhi Vs. Union of India AIR 1978 SC 514, this Court whiel dealing with the competence of the Magistrate to discharge an accused in a case like the instant one at the hand held that:

…. it is not open to the committal court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate Parliament’s purpose in remoulding Section 207-A (old Code) into its present non-discretionary shape. Expedition was intended by this change and this will be defeated successfully if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session. Assuming the facts to be correct as stated in the police report, …the Magistrate has simply to commit for trial before the Court of Session. If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect. … If made-up facts unsupported by any material are reported by the police and a sessions offence is made to appear, it is perfectly open to the Sessions Court under Section 227 CrPC to discharge the accused. This provision takes care of the alleged grievance of the accused.”

9. Thus, it is evident from the aforesaid judgment that when an offence is cognizable by the Sessions Court, the Magistrate cannot probe into the matter and discharge the accused. It is not permissible for him to do so, even after considering the evidence on record, as he has no jurisdiction to probe or look into the matter at all. His concern should be to see what provisions of the penal statute have been mentioned and in case an offence triable by the Sessions Court has been mentioned, he must commit the case to the Sessions Court and do nothing else.

10. Thus, we are of the considered opinion that the Magistrate had no business to discharge the appellant. In fact, Section 207-A in the old CrPC, empowered the Magistrate to exercise such a power. However, in CrPC, 1973, there is no provision analogous to the said Section 207-A. He was bound under law, to commit the case to the Sessions Court, where such application for discharge would be considered. The order of discharge is therefore, a nullity, being without jurisdiction.

12. The court should not pass an order of acquittal by resorting to a course of not taking cognizance, where prima facie case is made out by the investigating agency. More so, it is the duty of the court to safeguard the rights and interests of the victim, who does not participate in the discharge proceedings. At the stage of application of Section 227, the court has to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. Thus, appreciation of evidence at this stage, is not permissible. (Vide P. Vijayan v. State of Kerala, AIR 2010 SC 663, and R.S. Mishra v. State of Orissa, AIR 2011 SC 1103)

13. The scheme of the Code, particularly, the provisions of Sections 207 to 209 CrPC, mandate the Magistrate to commit the case to the Court of Session, when the charge-sheet is filed. A conjoint reading of these provisions makes it crystal clear that the committal of a case exclusively triable by the Court of Session, in a case instituted by the police is mandatory. The scheme of the Code simply provides that the Magistrate can determine, whether the facts stated in the report make out an offence triable exclusively, by the Court of Session. Once he reaches the conclusion that the facts alleged in the report, make out an offence triable exclusively by the Court of Session, he must commit the case to the Sessions Court.

14. The Magistrate, in exercise of its power under Section 190 CrPC, can refuse to take cognizance if the material on record warrants so. The Magistrate must, in such a case, be satisfied that the complaint, case diary, statements of the witnesses recorded under Sections 161 and 164 CrPC, if any, do not make out any offence. At this stage, the Magistrate performs a judicial function. However, he cannot appreciate the evidence on record and reach a conclusion as to which evidence is acceptable, or can be relied upon. Thus, at this stage appreciation of evidence is impermissible. The Magistrate is not competent to weigh the evidence and the balance of probability in the case.”

20. The constitutional Bench of the Supreme Court in case of Hardeep Singh Vs. State of Punjab and other (2014) 3 SCC 92 has also propounded that the stage of committal of case to Court of Session is neither stage of inquiry nor of trial. The paragraph no.23 of the said judgment is reproduced herein-below:-

“23. In Yeluchuri Venkatachennayya, In re, the Court held that an inquiry is a stage before the committal to a higher court. In fact, from a careful reading of the judgments under reference i.e. Ranjit Singh and Kishun Singh, it emerges that there is no dispute even in these two cases that the stage of committal is neither an inquiry nor a trial, for in both the cases, the real dispute was whether Section 193 Cr.P.C. can be invoked at the time of committal to summon an accused to face trial who is not already an accused. It can safely be said that both the cases are in harmony as to the said stage neither being a stage of inquiry nor a trial.”

21. Another constitutional Bench of the Apex Court in case of Dharam Pal and others Vs. State of Haryana and another (2014) 3 SCC 306 has also considered the scope and object of Section 190 and 193 Cr.P.C. The relevant paragraph nos. 38 and 39 of the said judgment are reproduced herein-below:-

“38. Section 193 of the Code speaks of cognizance of offences by Court of Session and provides as follows :-

“193. Cognizance of offences by Courts of Session. – Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.”

The key words in the Section are that “no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.” The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction. Although, an attempt has been made by Mr. Dave to suggest that the cognizance indicated in Section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned Magistrate, we are not inclined to accept such a submission in the clear wordings of Section 193 that the Court of Session may take cognizance of the offences under the said Section.

39. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge.”

22. The principle of law laid down by the Apex Court in case of Sanjay Gandhi Vs. Union of India (supra) was further followed with approval in case of Ajay Kumar Parmar (supra), in which Apex Court held that when an offence is cognizable by the Sessions Court, the Magistrate cannot probe into the matter and discharge the accused. It was further held that it is not permissible for Magistrate to do so, even after considering the evidence on record, as he has no jurisdiction to probe or look into the matter at all. His concern should be to see what provisions of the penal statute have been mentioned and in case an offence triable by the Court of Session has been mentioned, the Magistrate must commit the case to the Court of Session and do nothing else.

23. The Apex Court in case of Vinay Tyagi Vs. Irshad Ali @ Deepak Ali @ Deepak and others (2013) 5 SCC 762 has also held that the supplementary report has to be treated by the Court in continuation of the primary report and the same provisions of law i.e. sub-section 2(6) of 173 Cr.P.C. shall apply when the court deals with such powers.

24. After going through the judgments of Apex Court and statutory provisions of the Code of Criminal Procedure, as mentioned and discussed above, this Court is of the view that elaborate and wholesome treatment of the issues by the Apex Court did not leave anything for this Court to take a different view.

25. In view of dictum and guideline laid down by the Apex Court, as mentioned above, the main substratum of argument of Sri Anoop Trivedi, learned Senior Advocate appearing on behalf of the applicant that after submitting supplementary report under Section 173(8) Cr.P.C., the cognizance order already taken by the Magistrate on police report under Section 173(2) Cr.P.C. has become nullity/non-existent, therefore, before committing the case to the Court of Session, the Magistrate has to conduct an enquiry considering all the material evidences brought on record alongwith police report under Section 173 (2) Cr.P.C. as well as supplementary report under Section 173(8) Cr.P.C. to find out, which evidences are acceptable or reliable and which evidences are not acceptable or not reliable, with a view to decide whether the case is triable by the Magistrate or triable by Session and further argument the discharge application under Section 227 Cr.P.C. of the applicant was maintainable before the Magistrate on the basis of supplementary report under Section 173(8) Cr.P.C., are not liable to be accepted. Such arguments are devoid on merit being contrary to law as discussed above.

26. As a fallout and consequence of above discussions, this Court does not find any manifest error of law in the impugned order dated 6.3.2019 passed by the Chief Judicial Magistrate, Aligarh in Case No. 5471A of 2017 (State Vs. Prateek Gupta and others), under Sections 498A, 323, 504, 506, 307, 328, 427, 316 IPC, ¾ Dowry Prohibition Act and Section 66 Information Technology Amendment Act, Police Station Quarshi, District Aligarh and judgment and order dated 15.5.2019 passed by Sessions Judge, Aligarh. Both the impugned orders of this case are impeccable.

27. The application under Section 482 Cr.P.C. of the applicant lacks merit and is, accordingly, dismissed.

28. Office is directed to communicate this order to the concerned court below within two weeks.

Order Date :- 6.8.2019

AK Pandey

 

 

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