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Rajendra Singh And 3 Others vs State Of Up And Another on 5 March, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 74

Case :- CRIMINAL REVISION No. – 602 of 2020

Revisionist :- Rajendra Singh And 3 Others

Opposite Party :- State of U.P. and Another

Counsel for Revisionist :- Pradeep Kumar Singh

Counsel for Opposite Party :- G.A.

Hon’ble Ram Krishna Gautam,J.

1. This Criminal Revision u/s 397/401 Cr.P.C. has been filed by Rajendra Singh, Vimla Devi, Pankaj Singh and Km. Ranjana against order dated 04.12.2019 passed by learned C.J.M., Chitrakoot, in Final Report Case No. 406 of 2018 arising out of Case Crime No. 188 of 2018, u/s 498A, 304B I.P.C. and section 3/ 4 D.P. Act, P.S. Mau, District Chitrakoot, whereby learned Magistrate has rejected final report and ordered for further investigation.

2. Learned counsel for revisionists argued that it was a case of accident, wherein deceased was taken to hospital and was hospitalized there at. But unfortunately she succumbed to above burn injury. Her dying declaration was recorded by Executive Magistrate, wherein nothing incriminating was against the revisionists and on the basis of it, final report was submitted. However, protest petition was filed by informant and on the basis of contention of informant, the Magistrate passed the impugned order. Whereas the Magistrate was not competent to take prosecution version at the time of disposal of final report supplemented by protest petition. Rather it was case diary and contents thereof, which was to be taken into consideration. The Magistrate may proceed under Chapter XV of the Code of Criminal Procedure by examining complainant u/s 200 Cr.P.C. and his witnesses u/s 202 Cr.P.C. But he cannot direct for further investigation particularly upon a particular fact. But in this regard too above impugned order has been passed. Hence this revision.

3. Learned AGA has vehemently opposed the revision.

4. Section 190 Cr.P.C. provides for cognizance of offence by Magistrate. Section 190 Cr.P.C. reads as under:

“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.”

5. Apex Court in Minu Kumari Vs. State of Bihar, (2006) 4 SCC 399 has propounded that a 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 and exercise his power under section 190(1)(b). The Magistrate is not bound in such 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.

6. Section 173 Cr.P.C. provides for a report of police officer on completion of investigation. This report may be either a charge sheet or a final report and if final report has been submitted, the Magistrate is not bound by conclusion drawn by the Investigating Officer. If evidence collected in case diary makes some offence then the cognizance may be taken as per section 190 Cr.P.C. of those offences. If investigation is not fair or in accordance with facts given in investigation then final report may be rejected and a direction for further investigation may be given or final report may be accepted. Even if police report i.e. result of investigation under Chapter XII of Cr.P.C. is a conclusion that an investigating officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent court to take cognizance there upon under section 190(1)(b) of the Code and to proceed with the case for trial, and it cannot rely on the investigation or the result thereof, as has been propounded by Apex Court in Kaptan Singh Vs. State of Madhya Pradesh (1997) 4 Supreme 211.

7. Apex Court in Sri B.S.S.V.V.V. Maharaj Vs. State of U.P. 1999 Cr.L.J. 3661 (SC) has propounded that power of police to conduct further investigation, even after laying final report is recognized under section 173(8) Cr.P.C.

8. In the present case death by burn and injury caused by burn during treatment at Hospital within nine months of marriage is there. F.I.R. is with contention of dowry death. It was investigated. Final report was submitted and this conclusion was on the basis of statement made by deceased in her dying declaration. The contention of complainant was intact in case diary, but the final report was submitted. It was submitted by complainant that this dying declaration was manufactured and frivolous. There was no dying declaration of deceased. But this was not investigated by the investigating officer. Under all above facts and circumstances, final report was rejected with a direction for further investigation and this order was with no illegality or irregularity or in irregular exercise of jurisdiction by Magistrate.

9. Accordingly, this revision is dismissed.

Order Date :- 5.3.2020

Pcl

 

 

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