Deepak vs State Of U.P. And Another

(1) Deepak- Applicant has filed this petition under Section 482 Code of Criminal Procedure, 1973 for quashing of impugned order dated 5th April, 2018, passed by Chief Judicial Magistrate, Lalitpur in Case Crime No.0659 of 2015, under Sections 302, 201 IPC, whereby while disagreeing with the Second Final Report No.14 of 2016, exonerating the accused- applicant, he has been summoned by taking cognizance under Section 190(1)(b) Cr.P.C.

(2) The first information report was lodged by respondent no.2 (complainant)- Sunder Lal, wherein he alleged that his son, namely, Vijay Kumar being an employee of the Electricity Department had gone with accused- Deepak for restoration of electricity connection, who was threatened by the accused to restore the electricity connection and while doing so, he got electrocuted and died. Since the complaint was not being looked into by the police, therefore, he moved a complaint before the Magistrate, whereupon the jurisdiction under Section 156(3) Cr.P.C. was exercised and the above F.I.R. was registered. Later, after completion of investigation, final report u/s 173(2) Cr.P.C. bearing No.3 of 2016 dated 10.03.2016 (Annexure No.7) was submitted, wherein, it was mentioned that the ingredients to constitute the offences punishable under Sections 302, 201 IPC are not made out.

(3) Being dissatisfied with the said investigation report dated 10.03.2016, the complainant protested by moving an application dated 6.6.2016 (Annexure no.8), whereupon, the matter was again sent for further probe, however, again the conclusion remained unaltered and through the subsequent report dated 14.05.2016, the earlier conclusion declaring the accused as innocent was reiterated by the Investigating Officer.

(4) Again the complainant expressed his grievance against the second investigation report and pressed for prosecution of the accused, and while considering the material on record, the Magistrate proceeded to pass the impugned order dated 05.04.2018 against the applicant. Hence this application.

(5) Sri Ramesh Kumar, learned counsel appearing on behalf of the applicant has submitted that the Magistrate has passed the impugned order in a casual manner who has even not ascertained the presence of necessary ingredients to constitute the alleged offences punishable under Sections 302, 201 IPC. He, vociferously, argued that if, the entire facts and material on record are taken to be true on its face value, even then it would not be a case of homicidal death as the victim died an accidental death. He has referred to the impugned order to assert that the Magistrate has not adopted the proper procedure while passing the summoning order, therefore, it has resulted in miscarriage of justice, and prays for setting aside the impugned order.

(6) In response, referring to the counter affidavit filed by Sant Ram Verma, learned A.G.A. has submitted that after completion of investigation, cancellation reports were filed, but upon considering the material on record, the Magistrate has rightly exercised the jurisdiction by taking cognizance against the applicant under Section 190(1)(b) Cr.P.C. He submits that the applicant has hastily invoked the inherent powers of this Court under Section 482 Cr.P.C. and the application deserves to be dismissed.

(7) The respondent no.2 has failed to file any response to the petition despite various opportunities. Today, even no one has appeared on his behalf.

(8) Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material brought on record.

(9) Upon hearing the learned counsel for the parties and considering the above background, it becomes clear that after investigation twice cancellation reports were filed and nothing incriminating against accused applicant was found, but the Magistrate by summoning the applicant as an accused has not at all referred to the contents of the said final reports, much less to observe that prima facie case is made out against the applicant for commission of alleged offences. Even as per complainant, his son was engaged as a contractual employee by the Electricity Department, who died while restoring the electricity connection and though the conclusion in final reports filed by the Investigating Officer is on record, but the material collected during investigation has not been placed on record, therefore, this Court is not in a position to examine the said final report(s).

(10) By now it is well settled law that the Magistrate while considering the final report is to independently consider the material on record, as the conclusion drawn by the police in the final report is not binding. Upon such consideration, if the Magistrate finds that the investigation is incomplete, an order for further probe can be passed, and if, the conclusion drawn by the police is well supported by material collected during investigation, the Magistrate can accept the said report. However, if the material on record suggests prima facie commission of alleged crime, the Magistrate can disagree with the cancellation report submitted by the Investigating Officer u/s 173(2) Cr.P.C., and take cognizance by passing a speaking order. In this regard reference can be made to AIR 1968 Supreme Court 117, Abhinandan Jha and Ors. Vs. Dinesh Mishra.

At this stage, the Magistrate is expected to act carefully and must give reasons for disbelieving the final report submitted by the police in order to justify cognizance of the alleged commission of the offence. A perusal of the impugned order reveals that Magistrate has not at all referred to the contents of the final report(s) and simply proceeded to reject the same and ordered summoning of the applicant.

(11) Strangely, the Magistrate has relied upon the two affidavits of witnesses, namely, Durjan and Mangu Lal, wherein, they stated that accused Deepak committed murder of Vijay. Apparently, it is not the case where the Magistrate has adopted the procedure under Chapter XV Cr.P.C. (Complaints to Magistrates) by asking the complainant to adduce his pre-summoning evidence, therefore, there was no occasion for the Magistrate to examine such affidavits which could not be a part of the final reports as during investigation Investigating Officer records the statements of the witnesses under Section 161 Cr.P.C., which are not required to be signed by the said witnesses.

Thus, this Court has no hesitation in holding that the cognizance of the alleged offences taken against the applicant through the impugned order dated 5th April, 2018 is not based upon sound judicial principles, and the impugned order being erroneous in law calls for interference by this Court.

(12) Resultantly, the impugned order dated 05.04.2018 passed by Chief Judicial Magistrate, Lalitpur is set aside, and the case is remanded back before the Chief Judicial Magistrate, Lalitpur to decide it afresh after examining the final reports by passing a speaking and reasoned order.

(13) Accordingly, this application is finally disposed of.

(Manoj Bajaj, J)

Order Date :- 28.7.2023

Raj