GANGA RAM Vs. STATE OF U P

JUDGEMENT

(1.) MRS. Poonam Srivastava, J. Heard Sri. V. K. Tripathi, learned Counsel for the applicants and learned A. G. A. for the State.

(2.) THIS application has been filed for quashing the order dated 1-5-2002 passed by Additional Chief Judicial Magistrate 4th, Mathura in Case No. 116 of 1998, under Sections 304-B, 201 I. P. C. , Police Station Math, District Mathura.

(3.) IN the instant case the Magistrate has passed an order without recording any statement under Sections 200 and 202, Cr. P. C. in the case of Pakhandu v. State of U. P. , 2001 U. P. Criminal Rulings 604, a Division Bench of this Court had gone into detail regarding the circumstances when the Magistrate takes cognizance whether it is under Section 190 (1) (b) or 190 (1) (a ). IN paragraphs 14, 15 and 16 of-the said decision reliance was placed on a case decided by the Apex Court. Paragraphs 14, 15 and 16 of the said decision are quoted below: " (14) IN the case of Tularam v. Kishan Singh, AIR 1977 SC 2401, it was held that if the police, after making an investigation, sent a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of the case under Section 190 (1) (b) on the basis of material collected during investigation and issue process or in the alternative he could take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he was of opinion that the case should be proceeded with. (15) From the aforesaid decisions, it is thus clear that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require: (I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under Section 190 (1) (b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (IV) He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190 (1) (a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr. P. C. and thereafter decide whether complaint should be dismissed or process should be issued. (16) Where the Magistrate decides to take cognizance of the case under Section 190 (1) (b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code, and consequently the proviso to Section 202 (2) Cr. P. C. will have no application. It would however be relevant to mention that for forming suchan independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190 (1) (a) of the Code and calls upon the complainant to examine himself and the witnesses present, if any, under Section 200. "