Neutral Citation No.

- 2013:AHC-LKO:2621

Reserved
Case :- U/S 482/378/407 No. - 2030 of 2003
Petitioner :- Balram Singh
Respondent :- Vijai Singh & Another.
Petitioner Counsel :- S.H.Ibrahim,Neraj Sahau
Respondent Counsel :- Govt.Advocate,Mukul Rakesh

Hon'ble Surendra Vikram Singh Rathore,J.

1. Heard learned counsel for the petitioner, learned A.G.A. for
the State and perused the material available on record.

2. By means of this petition under Section 482 Cr.P.C., the

petitioner has prayed for quashing of orders dated 13.11.1997
and 22.3.1999 as well as order dated 12.11.2003 and has also
prayed for quashing of the entire proceedings arising out of Case
Crime No. 289 of 1996, under Section 307 IPC, police station
Kotwali, district Rae Bareli in Case No. 5569 of 1997 pending in
the court of learned Chief Judicial Magistrate, Raebareli.

3. Brief facts giving rise to the present controversy are that

complainant Vijai Singh lodged a F.I.R. against the present
petitioner, namely, Balram Singh, Surendra Singh and Anil Dwivedi
with the allegation that on 9.10.1996 at about 6:30 p.m. the
accused persons, in furtherance of their common intention to kill
Uma Nath Singh, reached the place of occurrence and on the
exhortation of the present applicant, his son Surendra Singh and
one Anil Dwivedi fired at Uma Nath Singh causing injuries on his
left thigh. Hearing noise, several persons assembled there and
accused persons ran away from-there. On the basis of this F.I.R,
case under Section 307 IPC was registered at case crime no. 289
of 1996 at police station Kotwali, district Raebareli. After
investigation, the police submitted final report in the matter. It
transpires from the record that injured Uma Nath Singh filed a
protest petition, on the basis of which the learned Chief Judicial
Magistrate, Raebareli by means of order dated 13.11.1997
rejected the final report and took cognizance for the offence under
Section 307 IPC. Feeling aggrieved thereby, the accused persons
preferred criminal revision no. 75 of 1998, which was also
dismissed by the revisional court vide order dated 6.10.1998.
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Another Criminal Revision No. 210 of 1998 was also preferred by

the accused persons against the same order and that too was
dismissed vide order dated 11.2.1999. Thereafter an application
was moved on behalf of the accused persons that they be
permitted to appear through counsel and their personal
attendance be exempted. It was further submitted that since
cognizance was not taken on the police report and the
complainant himself had not filed the protest petition, therefore,
cognizance taken by the learned Magistrate was cognizance under
Section 190 (1) (c) Cr.P.C., therefore under the provisions of
Section 191 Cr.P.C., the case ought to have been transferred to
some other court. By the impugned order, the learned Magistrate
rejected the plea so raised by the accused persons vide order
dated 22.3.1999. Feeling aggrieved thereby, criminal revision no.
43 of 1999 was preferred and that too was dismissed by the
impugned order dated 12.11.2003. Hence, the instant petition
under Section 482 Cr.P.C. has been filed.

4. Before this Court also, learned counsel for the petitioner

submitted that the protest petition was filed by third person and
not by the complainant and therefore on his protest petition, no
action ought to have been taken by the learned Magistrate.
Learned counsel for the petitioner has placed reliance on the
pronouncement of Hon'ble Supreme Court in the case of Kaptan
Singh and others Vs. State of M.P. and others reported in
[1997 SCC (Cri) 870].

5. Admittedly, Uma Nath Singh is the injured. In this case he

has received gunshot injury and has fully supported the
prosecution version. It is true that there is no provision in the
Code of Criminal Procedure to issue notice to the complainant
against the final report but the law initiated from the case of
Bhagwant Singh Vs. Commissioner of Police and another
reported in [(1985) 2 SCC 537] has developed into a settled
principle of law that before accepting the final report, notice to the
complainant is necessary.
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“Word 'complainant' in this context, in the considered

opinion of this Court shall include the victim though notice to the
victim is not necessary but he may file protest petition because he
was the victim of the offence. The complainant only gave
information regarding the offence so committed against him.”

Section 2 (w a) Cr.P.C. defines victim as under:-

“victim” means a person who has suffered any loss or injury

caused by reason of the act or omission for which the accused
person has been charged and the expression “victim” includes his
or her guardian or legal heir.”

6. The case of Kaptan Singh (Supra) does not support the

contention of the learned counsel. In that case revision was filed
by a private person against the order of acquittal and Hon'ble
Apex Court observed that though it was open to the High Court to
set aside an order of acquittal even at the instance of private
parties. Hence this case law is of no help to the petitioner.

7. Hon'ble Apex Court in the case of Bhagwant Singh

(Supra) has held in paragraph no. 5 as under:-

“5. The injured person or any relative

of the deceased though not entitled to notice
from the Magistrate, has locus to appear
before the Magistrate at the time of
consideration of the report, if he otherwise
comes to know that report is going to be
considered by the Magistrate and if he wants
to make his submissions in regard to the
report the Magistrate is bound to hear him.”

8. Since the injured being a victim of the offence has a right to

agitate his grievance before the Court. As such, the court taking
cognizance on his application has not committed any illegality.
Apart from it, in this case, the learned Magistrate has passed the
impugned order only on the basis of the material available before
him along with the police report.

9. When after investigation, the police submitted final report,

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then the learned Magistrate has several options such as,

(i) to reject the final report and on the basis of the material
available on record along with the police report straightway
summoned the accused persons;
(ii) direct for further investigation; and
(iii) accept the final report and drop the proceedings or (iv)
he may treat protest petition as complaint case and thereafter
may proceed in accordance with procedure provided under
Chapter XV of the Code of Criminal Procedure.

10. Hon'ble the Apex Court in the case of Minu Kumari & Anr.
Versus State of Bihar and others reported in [2006 (4) SCC
359] has discussed this aspect and has also held in paragraph no.
11 as under:
“11. 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
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
again has 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 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
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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 the 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 his power 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.”

11. Subsequently in the case of Chittaranjan Mirdha Versus

Dulal Ghosh and another reported in [(2009) 6 SCC 661]
Hon'ble the Apex Court has considered its earlier pronouncement
in the case of Gangadhar Janardan Mhatre Vs. State of
Maharashtra and others reported in [2004 (7) SCC 768],
Bhagwant Singh Vs. Commissioner of Police and another
reported in [(1985) 2 SCC 537], Abhinandan Jha and others
Vs. Dinesh Mishra reported in [AIR 1968 SC 117] and M/s
India Caret Private Limited Vs. State of Karnataka and
another reported in [1989 (2) SCC 132] and has quoted
paragraph no. 9 as under:-
“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
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 proceeding, 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 the 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
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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 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 the
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 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 Carat (P) Ltd. v. State of Karnataka3.]
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 case1 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,
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there is no provision in the Code for issue of a

notice in that regard.”

12. Hon'ble the Apex Court in the case of Bhushan Kumar and
another Vs. State (NCT of Delhi) reported in [2012 (5) SCC
424] has held that Section 204 of the Code does not mandate the
Magistrate to explicit state the reasons for summoning. It clearly
states that if in the opinion of the Magistrate taking cognizance,
there is sufficient ground for proceeding then summons may be
issued. This section mandates the learned Magistrate to form an
opinion as to whether there exists sufficient ground for summons
to be issued but it is nowhere mentioned in the section that
explicit narration of the same is mandatory meaning thereby that
it is not a prerequisite for deciding the validity of the summons
issued.

13. In the facts of this case, the prosecution has come with a
definite case that on the exhortation of petitioner Balram Singh,
his son Surendra Singh and one Anil Dwivedi fired at injured Uma
Nath Singh causing him fire arm injury on left thigh. When a
person is attacked by others with deadly weapons then by natural
reflex he makes effort to protect himself and in that effort the
injury could not have been caused on the place where accused
persons intended to cause it. To constitute an offence under
Section 307 IPC, it is the intention which plays vital role, when a
person fires on another person in furtherance of the common
intention of the accused persons then the intention or knowledge
can definitely be inferred that he had intention to cause death or
he had the knowledge that such an injury may, in the ordinary
course of nature cause death of the person. Therefore,
summoning of all the accused persons under Section 307 IPC
cannot by any stretch of imagination be said to be wrong or
against law.

14. Now this Court deals with the second argument of learned
counsel for the petitioner that cognizance was neither taken on
the basis of the final report nor on the basis of the protest
petition, therefore, it was a cognizance under Section 190 (1)(c)
 8

Cr.P.C. Hence provisions of Section 191 Cr.P.C. shall come into

play.

15. As discussed in the aforementioned case laws of Minu

Kumari and also in the case of Chittaranjan Mirdha (Supra), it
is clear that when the court rejects the final report and takes
cognizance on the basis of material available with police report
then such a cognizance shall be under Section 190 (1)(b) of the
Cr.P.C. Hence, the provision of Section 191 Cr.P.C. were not the
least applicable in this case. The prayer of the accused persons to
permit them to appear through counsel without surrendering
before the court below and without following the procedure
provided under law therefor was also misconceived and was
rightly rejected by the court below.

16. In view of the discussion made above, this petition under

Section 482 Cr.P.C. has absolutely no merit and the same
deserves to be dismissed and is hereby dismissed.

17. This petition has been preferred only to cause delay in the
disposal of the case and the petitioner has been successful in
delaying the trial of this case for so many years. As such, office is
directed to communicate this order forthwith to the court
concerned with the direction to proceed against the accused
persons in accordance with law to procure their attendance. The
court below shall make all endeavour to dispose of this case as
expeditiously as possible as the incident relates to the year 1996.
Order Date:11th, March, 2013
Virendra