UMA SHANKER Vs. STATE

JUDGEMENT

(1.) A first information report was lodged on 24th November, 1974 by one Chotai at police station Kotwali City" Mirzapur, against 13 persons for the commission of offences under Sections 302,307,147,148 and 323 Indian Penal Code. The case was investigated by the police of police station Pandari, and a charge- sheet was submitted against 7 accused persons viz, Kallu and others. One acdused Doodhnath died during the pendency of the investigations. According to the instant application, filed under Sections 482 Criminal Procedure Code the allegation in Para 3 of the affidavit, accom panying thereto, ate that no charge-sheet was submitted by the police against the remaining 5 accused persons. It was informed that the matter was pending investigation. Kallu and others were committed for trial to the Court of sessions. Thereafter, it appears that an application was moved by Chakuri in the Court of Chief Judicial Magistrate, Mirzapur, vide Annexure 1, filed along with the application under Section 482 Criminal Pro cedure Code. In this application, it was mentioned that the police had sub mitted a collusive final report against five accused persons, viz. Ram and others and it was prayed that the Court may take cognizance of the offence and summon the accused. It appears that the Sessions Trial No. 67 of 1976 against 7 accused-persons Kallu and others, resulted in their conviction on 27th January 1978. On 1st February, 1978 the Chief Judicial Magistrate, Mirzapur, took cognizance of the offence against Rama and others and summoned them on the basis of the applications filed by Chakuri. Aggrieved thereby a revision was filed before the IV Addl. Sessions Judge, Mirzapur, which has been dismissed on 19th January hence the instant application under Section 482 Criminal Procedure Code by Rama and others. I have heard learned counsel for the parties at a considerable length and have also perused the affidavits and Annexures filed in this Court. Learned counsel for the applicant has argued that the Chief Judicial Magistrate Mirzapur had acted illegally in taking cognizance of the offence under Section 190 (c) Criminal Procedure Code. He submits that the appli cation filed by Chakuri (Annexure No. 1) gives all the allegations pertaining to the offence in question and therefore, it was covered by the definition of com plaint as laid down in Section 2 (d) Criminal Procedure Code as such the Magistrate could only take cognizance of the offence under Section 190 (a) Criminal Procedure Code and therefore, he was bound to follow the procedure prescribed in Section 200 Criminal Procedure Code relating to complaints filed before the Magistrate. He should have summoned the complainant and his witnesses and thereafter, if he found that the prima facie case has been made out, he could summon the accused. From a perusal of the orders of the Courts below it appears that cogni zance has been taken under Section 190 (c) Criminal Procedure Code by the Chief Judicial Magistrate, Mirzapur, after he had perused the contents of the application of Chakhuri and looked into the first information report; the record of the Sessions Trial No. 67 of 1976, and also the judgment dated 17th January, 1978 passed by the IV Addl. Sessions Judge, Mirzapur. The Chief Judicial Magistrate Mirzapur opined that it was a fit case for taking cognizance. While dealing with this question, the Sessions Judge was of the opinion that "the crux of the matter is the source of the information". In his view the source of the Magistrate's information was the application of Chakhuri and not the papers furnished by the police. The application contained all the ingredients of the offence and the facts constituting the same. The perusal of the first information report and the case diary by the Magistrate would not change the position because the initial source of information was the application of Chakhu ri. On this reasoning the Sessions Judge was of the view that the Magis trate had jurisdiction to take cognizance of the offence on the basis of the infor mation received from Chakhuri under Section 190 (c) Criminal Procedure Code. Having carefully considered the submissions made by the parties' counsel, I am of the opinion that this question can be tackled from two points of view. Section 173 Criminal Procedure Code refers to the submission of the report by the police officer, after the completion of the investigation. It would be pertinent to quote the relevant portion of this section. 173 (1);-Every investigation under this Chapter shall be completed without unnecessary delay. (2) (i) As soon as it is complete, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police 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 appears 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 whether without sureties; (g) whether he has been forwarded in custody under Section 170. " To my mind Section 173 (2) (d) Criminal Procedure Code quoted above, is very relevant. The report has to indicate whether any offence appears to have been committed and if so, by whom. In other words supposing there are 12 accused, as in the instant case, the report should indicate as to which of those accused appears to have committed the offence. In other words, the report should specify that 7 of them appeared to have comitted the offence for whom the charge-sheet was submitted, whereas the 5 other accused have not com mitted the offence for whom the final report was submitted. In the present case, as mentioned above, the charge-sheet was submitted against 7 accused persons who have been brought to trial and subsequently convicted by the Sessions Judge. So far as rest of the five accused are concerned, the position is thus. According to the allegations in para 3 of the affidavit, filed along with this application under Section 482 Criminal Procedure Code no charge-sheet was submitted against them as it was informed that the matter is still under investigation. According to the application of Chakhuri, a final report has been submitted with regard to these five persons and he had mentioned that this report was collusive, because the local police are influenced by Girja, a fellow constable, who was the brother of Rama, co-accused. These allegations of collusive are also supported by the observations made by the Sessions Judge in para 11 of this judgment convicting the seven co-accused. He prayed that the Court may take cognizance of the offence. I have been referred to a number of Rulings of the Supreme Court in support of the proposition that after the submission of the final report, if a protest petition is filed by the complainant, then the Magistrate has jurisdiction to take cognizance of the offence under Section 190 (c ). Criminal Procedure Code. A reference may be made in this connection to Raghubans Dubey v. State of Bihar (1968 A. C. C. 69), and Hareram Satpathy v. Tikaram Agarwal (1978 A. C. C. 356), in these Supreme Court cases it has been held that "when cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offen ders really are and once he comes to the conclusion that apart from the persons sent up by the police, some other persons are involved, it is his duty to pro ceed against those persons. The summoning of the Additional accused is part of the proceeding initiated by his taking cognizance of an offence". I have also been referred in this connection to a Division Bench Case of our Court, reported in Ram Chandra v. State (1970 A. C. C. 315), in which it has been held that "if a charge-sheet is submitted by the police, it is open to the Magistrate either to take cognizance under Section 190 (1) (b) or to refuse to take cogni zance. Likewise if a final report is submitted by the police, it is open to the Magistrate either to accept the final report and drop the matter or to take cognizance under Section 190 (1) (c ). My attention has further been invited to another decision reported in Abhinandan Jha v. Dinesh Mishra (A. I. R. 1968 S. C. 117) Relying upon this, emphasis is laid upon the expression 'protest petition'. The argument is that if a "protest petition. ' in filed against the final report, then it is open to the Magistrate to take cognizance of the offence under Section 190 (c) Criminal Procedure Code. Unfortunately the expression "protest Petition" does not find expression any where in the Code of Criminal Procedure. Admittedly such a petition by whatever name it may be called, is nothing more than an objection to the final report, filed by the police, after concluding investigation to the effect that no case is made out against the accused. In some cases of Calcutta, a protest petition' has been interpreted to be a 'narajagi petition'. The translation of 'protest petition' as a 'narajagi Petition' is no doubt interesting, but in its ultimate result it merely indicates an opposition to the finding arrived at by the police with regard to the innocence of the accused by the submission of final report by the Magistrate. I had granted time to the counsel for the parties to enquire and let me know whether as a matter of fact a final report has been filed in this case or not, but inspite of time being granted, counsel for both the parties were unable to disclose the correct position. If the allegation in the application of Chakhuri are correct, then a final report has been submitted and the application of Chakhuri amounts to a ''protest petition" or a "niaajagi petition". In that case this application would amount to other information as defined in Section 190 (1) (c) Criminal Procedure Code and it is open to Court to take cognizance under that section. If, however, no final report has been submitted, the position would be that according to the allegation of Chakhuri the police is delaying the investiga tion by not submitting any report whatsoever with respect to the five accused persons, as required by Section 173 Criminal Procedure Code. They are neither submitting a charge-sheet nor they are submitting a final report. There is no doubt in the legal position that the Magistrate cannot force the Investiga ting officer to submit the result of the Investigation under Section 173 Criminal Procedure Code, to it, but if the Magistrate derives information from any other source there is nothing in law to bar the Magistrate from taking cogni zance under Section 190 (1) (c) Criminal Procedure Code. Narajagi may be ex pressed by the complainant or the injured party, not only by protesting against the submission of a collusive and incorrect final report, but it can also be ex pressed by the party concerned against the non-submission of the report and the dilatory tactics adopted by the investigating agency in the-submission of the report. While expressing this Narajagi, there may be an expression in the protest petition itself giving details of the offence and requesting the Magis trate to take cognizance of the same. To my mind, the delay or non-submission of the final report, will not take away the rights of an aggrieved party, viz, complainant or injured persons from bringing to the notice of the Magistrate that an offence has been committed by some accused persons with respect to whom no report has been submitted under Section 173 by the police, inspite of it being a fit case, in which the Magistrate should take cognizance on the information supplied to him by the aggrieved party. In my opinion, merely because this information contained the details of the offence, as is also required in a complaint it does not debar the Magistrate from proceeding to take cognizance under Section 190 (c) Criminal Procedure Code. In the instant case out of 12 accused persons the case was already proceeding against seven accused persons when the application was filed by Chakuri. Before any final order could be passed on this application, these seven accused have also been convicted and the material on the record indicates that the police of Pindari was being wrongly influenced by Girja the brother of Rama, accused, in not submitting its report under Section 173 Criminal Procedure Code. In these circumstances, the Magistrate was fully justified in taking cognizance of the offence under Section 190 (1) (c) Criminal Procedure Code and in summoning the accused. For the reasons given above, I am of the opinion that no illegality has been committed by the Courts below in passing the impugned orders. There is, thus, no merit in this application under Section 482 Criminal Procedure Code, which is hereby dismissed. .