Kishore S/O Murarilal Verma Vs Jitendra S/O Narayandas And; State Of M P Through P S

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2010 CJ(MP) 745

HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

KISHORE S/O MURARILAL VERMA V/S JITENDRA S/O NARAYANDAS

AND; STATE OF M P THROUGH P S

Decided On: 05 April 2010

Hon'ble Judges: S R Waghmare, J

Result: Application dismissed.

Acts Referred:

(A) Code of Criminal Procedure, 1973, Section 482, Section 200, Section
156(3), Section 202(B) Indian Penal Code, 1860, Section 34, Section 323,
Section 506, Section 392, Section 294

Eq. Citation: 2010 (2) MPWN 123

[+] Cases Referred (3)

FAKHRUDDIN AHMAD V. STATE OF UTTARANCHAL AND ANR., 2008 CrLJ

4377
INDIA SARAT PVT. LTD. V. STATE OF KARNATAKA AND ANR., 1989 AIR(SC) 885
GANGADHAR JANARDAN MHATRE V. STATE OF MAHARASHTRA AND ORS., 2004
AIR(SC) 4753

JUDGEMENT

1. This petition is filed by accused Kishore under Section 482 of the Cr.P.C. being
aggrieved by the proceedings taken by the Magistrate and directing the police, M.I.G.
Indore to register a case for offence under Sections 323, 294, 506, 392/34 of the I.P.C.

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2. Counsel for the petitioner has vehemently urged that the petitioner has filed this
petition for quashment of the Criminal Case No. 3422/2008 pending before the JMFC,
Indore. Counsel has further urged that the learned Judge of the Lower Court had erred
in registering the case against the petitioner on the complaint filed by the complainant
Jitendra s/o Narayandas. The complaint, according to the Counsel prima-facie, was
made on false ground and was malicious and vexatious. More importantly, Counsel has
stated that the final report was submitted by the police regarding closure of the case
then the learned Judge of the lower Court ought not to have taken the cognizance of
the offence and registered the same. Counsel has further stated that the police had
submitted the closure report to the Magistrate on 24/1/2009 and the lower Court had
considered the same and despite which, the process was issued for continuing the case
under Section 200 of the Cr.P.C.

3. Counsel for the petitioner has also stated that the learned Judge of the Lower Court
had erred at this juncture and relying on Gangadhar Janardan Mhatre v. State of
Maharashtra and Ors., 2004 AIR(SC) 4753, Counsel has stated that the Apex Court
had laid down guide lines as to what a Magistrate must take recourse to when a report
is placed by the police before it under Section 173(2)(1). It held thus:

9. When a report forwarded by the police to the Magistrate under Section 173(2)(i) is
placed before him several situations arise. The report may conclude that an offence
appears to have been committed by a a particular person or persons and in such a
case, the Magistrate may either (1) accept the report and take cognizance of the
offence and issue process, or (2) may disagree with the report and drop the
proceedings, or (3) may direct further investigation under Section 156(3) and require
the police to make a further report. The report may on the other hand state that
according to the police, no offence appears to have been committed. When such a
report is placed before the Magistrate he has again option of adopting one of the three
courses open i.e. (1) he may accept the report and drop the proceeding or (2) he may
disagree with the report and take the view that there is sufficient ground for further
proceeding, take cognizance of the offence and issue process; or (3) he may direct
further investigation to be made by the police under Section 156(3). The position is,
therefore, now well-settled that upon receipt of a police report under Section 173 (2) a
Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the
Code even if the police report is to the effect that no case is made out against the

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accused. The Magistrate can take into account the statements of the witnesses
examined by the police during the investigation and take cognizance of the offence
complained of and order the issue of process to the accused. Section 190 (1)(b) does
not lay down that a Magistrate can take cognizance of an offence only if the
Investigating Officer gives an opinion that the investigation has made out a case against
the accused. The Magistrate can ignore that 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 exercise of his powers under Section
190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound
in such a 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. See India Sarat Pvt. Ltd. v. State of
Karnataka and Anr., 1989 AIR(SC) 885. The informant is not prejudicially affected when
the Magistrate decides to take cognizance and to proceed with the case. But where the
Magistrate decides that sufficient ground does not subsist for proceeding further and
drops the proceeding or takes the view that there is material for proceeding against
some and there are insufficient grounds in respect of others, the informant would
certainly be prejudiced as the First Information Report lodged becomes wholly or
partially ineffective. Therefore, this Court indicated in Bhagwant Singh's case (supra)
that where the Magistrate decides not to take cognizance and to drop the proceeding or
takes a view that there is no sufficient ground for proceeding against some of the
persons mentioned in the First Information Report, notice to the informant and grant of
opportunity of being heard in the matter becomes mandatory. As indicated above, there
is no provision in the Code for issue of a notice in that regard.

4. Thus under such circumstances, Counsel has stated that the Court ought to have
taken a view that it was satisfied and closed the matter instead the proceedings under
Section 200 by continuing the proceedings. Counsel urged that the learned Judge of
the lower Court has not applied his mind to final closure report of the police at all. If the
Court had formed an opinion then reasons ought to have been granted. Counsel
stressed the fact from the impugned order it was evident that the learned Judge had
not considered the closure report at all. He also urged that the Court ought to have
recorded its disagreement with the report if it was dissatisfied with the same before
ordering issuance of process under Section 200 of the Cr.P.C. On these grounds,
Counsel has prayed that the case pending before the Court below be quashed.

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5. Counsel for the respondent No. 1 Shri Ajay Jain, on the other hand, has vehemently
denied the fact that the final report was not considered at all by the learned Judge of
the lower Court. He urged that it was not a case as is being projected by the Counsel
for the petitioner that the final report of the police has not been taken into
consideration at all by the lower Court or that the Judge has not applied his mind to the
final report before issuing the process under Section 200 of the Cr.P.C.

6. Counsel for the respondent drew attention to this Court to the proceedings dated
30/1/2009 of the lower Court whereby the learned Judge has stated that the Court was
not satisfied with the final report of the police and registered a case for offence under
Sections 323, 294, 506, 392/34 of the IPC and issued process under Section 200 of
the Cr.P.C. Then under such circumstance, the action taken by the Magistrate cannot be
faulted with. Counsel has further stated it is trite law that the opinion of the Magistrate
regarding the final report of the police is not mandatorily binding on the Magistrate, he
cannot be compelled to close the case on the receipt of the closure report of the
Investigating Officer or the police against the accused. If the Magistrate is not satisfied
regarding the materials unearthed by the police then he can order a further
investigation himself or if there is sufficient material for him to take cognizance of the
offence, he can take cognizance of the offence under Section 190(1(b) and issue
process straightway to the accused. Counsel has relied on, AIR 2004 SC 4753 the same
case relied by the Counsel for the petitioner and more recent case by the Apex Court in
the matter of Fakhruddin Ahmad v. State of Uttaranchal and Anr., 2008 CrLJ 4377
Counsel has prayed for dismissal of the petition.

7. On considering the above submissions, I find the singular question that arises before
me for adjudication in this case under Section 482 of the Cr.P.C. is whether the Judicial
Magistrate Class I, Indore had erred in taking cognizance of the offence when allegedly
there is no material available on record to support the said complaint. I find from the
proceedings of the lower Court contrary to the submissions of the Counsel for the
petitioner that it is not a case that the learned Judge of the lower Court had not applied
his mind in the final report of the police. The provisions of law under the Criminal
Procedure Code are also quite clear on the point. In the exercise of his discretion the
Magistrate is at liberty to take cognizance of the offence and follow the procedure laid
down under Sections 200 and 202 of the Cr.P.C. He can also order further investigation
to be made by the police under Section 156(3) of the Cr.P.C., he is not bound by the

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final report of the police as is being vehemently urged by the Counsel for the petitioner.

8. It is also not a case where the learned Judge of the lower Court has not applied his
mind at all to the final report of the police as is alleged by the Counsel for the petitioner.
The proceedings dated 30.1.2009 are a clear indication to the contrary. The Magistrate
was well in his jurisdiction either to accept the report of the police as it is or to issue
further process as indicated in the case of Gangadhar (supra) and when he found a
prima-facie case made out against the petitioner, he has applied his mind to the
allegations of the complainant and thus there is no need to interfere with discretion of
the Magistrate as already observed above. It is not necessary to this Court to go into
the facts at this stage.

9. It is manifest from the proceedings dated 30.1.2009 that the learned Judge of the
lower Court had the opportunity to apply his mind to the final report by the police and
the learned Judge found on the basis of the material before him that there was a
prima-facie case made out against the present petitioner for offence under Sections
323, 294, 506, 392/34 of the IPC and issued process under Section 200 of the Cr.P.C.
Then under such circumstance, the action taken by the Magistrate cannot be faulted
with. Then in this light, I find that it would not be proper for me to express any opinion
on the merits of the case at this stage. So also keeping in mind the caution directed to
be exercised by the Apex Court in such matters so that a legitimate prosecution is not
stifled, I find that the order of the lower Court directing issuance of process by
registering the offence is impeccable and does not call for any interference.
Consequently, the application for stay is also dismissed.

10. The application under Section 482 of the Cr.P.C. is also devoid of merit and is
dismissed as such.

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