MOHAMMAD SHARIF Vs. STATE OF UTTARPRADESH

JUDGEMENT

(1.) THE applicants have come forward with a prayer that the impugned order summoning the applicants under various Sections may be quashed. THE Magistrate in the impugned order wrote down that he has perused the case diary (G.D. is a clerical slip) and a prima facie case against the applicants is made out and they be summoned. THE applicants went in revision. THE revisional court upheld the order of the Magistrate though the reasoning given by the revisional court does not appeal to me at all. What it has stated was that the Magistrate may have taken other materials before him into consideration as to pass orders and summoning order is under Section 190(1)(a) or 190(1)(c) Criminal Procedure Code. I feel that the revisional court played simply on imagination to make such type of observation. It could not have a barometer to measure the mind of the Magistrate. Actually what the Magistrate wrote in his order was to be considered. One of the grounds taken by the learned counsel for the applicants is that in view of the observation of the revisional court that the cognizance is under Section 190(l)(a) or 190(I)(c) actually the procedure of the complaint case should have been followed as to record statements under Sections 200 and 202 Criminal Procedure Code. As observed earlier the revisional court has simply played upon imagination. THE Magistrates order is the main base and it makes it clear that the summoning order is not based upon any affidavit etc. but upon the perusal of the case diary. It is noteworthy that in the case of Abhinandan jha v. Dinesh Mishra1 the Supreme Court observed that if the Police submits a final report then three courses are open to the Magistrate, (1) he may direct further investigation under Section 156 Criminal Procedure Code (2) if he feels that no case is made out for issuing process he may accept report and (c) if ultimately the Magistrate is of the opinion that the materials disclose prima facie offence notwithstanding the contrary opinion expressed by the Police the Magistrate could take cognizance. This is now a settled law. Some ambiguity arose because in the reporting it was printed that this cognizance may be taken under Section 190(l)(c). That position has now again been made clear by a later prononcement of the Supreme Court in the case of H. S. Bains v. State2. It has been stated in the judgment that his lordship has no doubt that the reference to Section 190(l)(c) was a mistake for Section 190(1)(b). In the case of H. 5, Bains (supra) again the very principles laid down in the case of Abhinandan Jha (supra) were reiterated, namely, that if the Magistrate decides that there is no sufficient ground for proceeding he may drop action or if he decides that prima facie case is made out he may take cognizance of the offence under Section 190(1)(b) and he may do so without being bound in any manner by the conclusion arrived by the Police After going through the order of the Magistrate I find that his order summoning the accused persons is covered under Section 190(l)(b). He has expressly stated that on perusal of the case diary a prima facie case is made out. When that is the position the procedure laid down under Section 190(1)(a) would not be attracted and the grounds taken concerning the same have no force. It was next urged that in any case the Magistrate has not exercised his mind and there is no prima facie case against the accused persons and consequently the summoning order of the Magistrate may be quashed. In support of such arguments reliance was placed upon the case of Mohammad Atullah v. Ram Saran3. In that case the Magistrate directed investigation on a complaint case and after receiving such investigation report there was no additional material than what was existing when the investigation was ordered and it was held that cognizance could not be taken. THE facts are thus totally distinguishable. Reliance was further placed upon the case of Krishna Kaur v. State of U.P.4 what transpired in that case was that there was a final report. Cognizance was taken by the Magistrate on the basis of suspicion arising through Police papers and in that context it was held that the order was without jurisdiction. In the present case the Magistrate has not stated that any suspicion has arisen. He has stated that on perusal of the case diary he finds that a prima facie case is made out. I have already referred to the case of Abhinandan Jha (supra) and H. S. Bains (supra) and both the cases are direct authority for the proposition that on the basis of the final report the Magistrate can take cognizance on the basis of material before the police and the opinion of the investigation is not binding upon him. Reliance was further placed upon the case of Mumtaz v. State of U.P.5. In that case also what the Magistrate did was to rely upon the injury report and observation was that there must be such facts which go to constitute an offence with which the accused was charged. Reliance was further placed upon the case of Bhupal Singh v. State6. This ruling will not be helpful in view of the view expressed in the case of Abhinandan Jha (supra). Reliance was also placed upon the case of Tula Ram v. Kishore Kumar Singh7 what has been held in that case is that notwithstanding a final report the Magistrate can issue process under Section 204 after recording statement of the complainant and his witnesses. This ruling does not say that the Magistrate cannot take cognizance under Section 190(1)(b) Criminal Procedure Code on a final report submitted by the Police. On the other hand there are two direct authorities to which I have already referred.

(2.) IT is next urged that actually the case diary does not disclose any case and the Magistrate did not exercise his mind and there are discrepancies in the statements under Section 161 Criminal Procedure Code. I may mention that this Court does not function as a trial Court. IT simply has to examine whether some material exists or not and whether some of the witnesses have named the applicants or not. I have satisfied myself on that point as to the discrepancy and omission of the name of some of the accused person by some other witnesses; it is a matter which may better be pointed out before the trial court during trial to challenge the veracity of the witnesses. I do not want to express my opinion regarding materials in details to avoid any prejudice to the applicants during the hearing of the case by the Magistrate. This application is rejected. Application rejected.