RAKESH & ANR. v. STATE OF UTTAR PRADESH
AIR 2014 STPL (Web) 524 SC
| CASE NAME: | RAKESH AND ANR. V. STATE OF UTTAR PRADESH AND ANR. |
| EQUIVALENT CITATION: | AIR 2014 STPL (Web) 524 SC |
| DATE OF JUDGEMENT: | 13th AUGUST, 2014 |
| COURT: | SUPREME COURT OF INDIA |
| CASE NUMBER: | CRIMINAL APPEAL NO. 1412 OF 2014 (ARISING OUT OF SLP(CRL.) No. 3308 OF 2013 |
| CASE TYPE: | CRIMINAL APPEAL BY SPECIAL LEAVE PETITION |
| PETITIONER (APPELLANT): | RAKESH AND ANR. |
| RESPONDENT: | STATE OF UTTAR PRADESH AND ANR. |
| BENCH: | DIVISIONAL BENCH : JUSTICE SUDHANSU JYOTI MUKHOPADHAYA ; JUSTICE RANJAN GOGOI |
| STATUTES AND SECTIONS: | SECTION 364 OF INDIAN PENAL CODE SECTIONS 190, 200 AND 202 OF CODE OF CRIMINAL PROCEDURE |
| CASES REFERRED TO: | BHUNESHWAR PRASAD SINHA vs. STATE OF BIHAR GOPAL VIJAY VERMA v. BHUNESHWAR PRASAD SINHA & ORS. H.S. BAINS vs. STATE (UNION TERRITORY OF CHANDIGARH) GANGADHAR JANARDHAN MHATRE vs. STATE OF MAHARSHTRA AND ORS. MAHESH CHAND vs. B. JANARDHAN REDDY & ANR. KISHORE KUMAR GYANCHANDANI vs. G.D. MEHROTRA & ANR. |
FACTS OF THE CASE:
The respondent in the current case ( The State of UP and Anr.) had earlier lodged a FIR which was registered as a Criminal Case under Section 364 of the Indian Penal Code at the Police Station Gosaiganj District Sultanpur against the appellants ( Rakesh and Anr.). When the investigation was completed the investigating officer submitted a final report to the court that all the allegations framed against the appellants and the other two accused were all false and that there was no such case made. On 26th November 2002, the learned Magistrate accepted the final report by the investigating officer but also directed that the case shall be further proceeded but as a ‘complaint case’. The statements were recorded under Sections 200 and 202 of the Code of Criminal Procedure (Cr.P.C.) and the accused (the appellant) was summoned by the trial court to face the trial. The trial court orders were not accepted by the appellant of this case and thus an appeal was made to the High Court of Allahabad.
ISSUES RAISED:
Whether a Magistrate after accepting a negative final report submitted by the Police can take action basis of the protest petition filed by the complainant/ first informant?
SECTIONS REFERRED:
INDIAN PENAL CODE,1860:
SECTION 364 : Kidnapping or abducting in order to murder : “ Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with 2 [imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”
This section clearly explains that any person who either kidnaps or abducts any other person with an intention of murdering that person or putting that person in danger of being murdered shall be held liable for the offence of Kidnapping or Abducting under section 364 of IPC. Such an accused shall be punished with life imprisonment or for rigorous imprisonment for a term which may extend to 10 years , there shall be some fine also imposed.
Illustration:
- A kidnaps Z from India, intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined under this section.
- A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offence defined under this section.
CRIMINAL CODE OF PROCEDURE, 1898:
[1]
SECTION 190: COGNIZANCE OF OFFENCES BY MAGISTRATES:
- Subject to the provisions of this Chapter, any Magistrate of the first class, and any magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence:
- Upon receiving a complaint of facts which constitute such offence;
- Upon a police report of such facts;
- Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
- The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
SECTION 200: EXAMINATION OF COMPLAINANT:
- Section 200 gives power to examine the complainant as well as witnesses if present there.
- Any further inquiry or investigation if required can be ordered.
- Magistrate can postpone the issue of proceedings if he feels so
- Magistrate can dismiss the complaint u/s 203 for which he shall briefly record his reasons.
SECTION 202: POSTPONEMENT OF ISSUE OF PROCESS:
The order of investigation is called “ Post Cognizance Investigation”. In case of offences triable by the sessions court enquiry conducted shall be broad in nature unlike the cases which are at the discretion of the magistrate. This broad enquiry is conducted by the magistrate only in the situations where the magistrate is confused that the complaint shall either be dismissed or proceeded further. Accused shall prepare himself for the defence with respect to accusations implied on him.
- Magistrate can dismiss the complaint u/s 203 if he finds no ground for proceedings.
JUDGEMENT OF THE SUPREME COURT:
While the question which was being raised during the trial was answered by the Allahabad High Court. It was answered in affirmative ie. in support of the the respondent, due to which the appellant filed this petition.
After duly hearing both the parties’ counsels. The honourable Supreme Court cited a few cases in reference as follows:
- Bhuneshwar Prasad Sinha v. State of Bihar AIR 1981 CRL.LJ 795
The Supreme Court stating the fact that the very same question came up for consideration in this case also before the Patna High Court, wherein the court answered the question in negative stating:
‘It has been held by the Supreme Court that if the Magistrate agrees with the opinion of the police then he may accept the final report and close the proceedings. It will then be deemed that the proceedings against the accused in respect of the facts constituting the offence have been closed by the Magistrate in a Judicial Proceeding.
If it is so then the proceeding can only beset aside by the higher authority in revision and the Magistrate is not entitled to take cognizance on the basis of the complaint or protest petition in respect of the same facts constituting the offence as mentioned in the final form.’
In the above case the Patna High Court gave the verdict that the final form was accepted by the court earlier. The Magistrate was not justified to take cognizance in respect of the same facts constituting the offence which were mentioned in the final form. To check the litigation it is necessary that when a judicial order is passed by accepting the final form such order should not be set aside by the Magistrate by taking cognizance on the basis of the complaint petition.
In the appeal against the Patna High Court’s decision, the Supreme Court, however held that the High Court was clearly in error in thinking that the Magistrate could not take the cognizance of a case upon the complaint because he had earlier refused to take the cognizance of case on police report. Thus the order of the High Court was set aside by the honourable Supreme Court and the matter was remitted to the Chief Judicial Magistrate, Patna for disposal according to the law.
This decision of the Supreme Court was reported in the case of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha & Ors. AIR 1982 (3) SCC 510.
3. H.S. Bains v. State (Union Territory of Chandigarh AIR 1980 Crl LJ 1308:
The genesis of the views of the Court expressed in the Gopal Vijay Verma case have its roots in this case. The Supreme Court held that after the receipt of the police report under Section 173, the Magistrate has three options:
- he may decide that there is no sufficient ground for proceeding further and drop action.
- he may take cognizance of the offence under Section 190 (1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report.
- he may take cognizance of the offence under section 190 (1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under section 200. If he adopts the third alternative, he may hold or direct an enquiry under section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.
The second and the third options available to the Magistrate according to the H.S. Bains case had been relied upon in the subsequent decisions of the Supreme Court to approve the action of the Magistrate accepting the final report and at the same time in proceeding to treat either the police report or the initial complaint as the basis for further action.
4. Gangadhar Janardan Mhatre v. State of Maharashtra & Ors. AIR 2004 (7) SCC 768
It was held by the Supreme Court that 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 the 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 for taking cognizance under Section 190 (1)(a) though it is open to him to act under Section 200 and 202 also.
- The Supreme Court also cited the Judgements of the Mahesh Chand v. B. Janardhan Reddy and Anr. AIR 2003 (1) SCC 734 wherein the view of Gopal Vijay Verma Case was followed and the judgement of Kishore Kumar Gyandchandani v. G.D. Mehrotra & Anr. AIR 2011 (15) SCC 513 where stating the Mahesh Chand Case the SC said that there cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/ complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised.
- Thus according to the Supreme Court, the contention of the accused pertained to the question of jurisdiction only and it was urged that having accepted the final report the learned Magistrate had become “functus officio” ( having performed the office: means that once an arbitrator renders a decision regarding the issues submitted, he or she lacks any power to re-examine that decision) and was denuded of all power to proceed in the matter. The above stand taken and the answer provided by the High Court was not required by the Supreme Court to consider the circumstances in which the exercise of power was made.
- While giving the verdict the Supreme Court cited the Kishore Kumar judgement and the Gopal Vijay Verma Judgement and thus reiterated the same conclusion that was arrived in the two cases.
- Therefore, the appeal was held to be without any merit or substance and was accordingly dismissed.
CONCLUSION:
In the conclusion to the case discussed above ,that is, Rakesh and Anr. v State of Uttar Pradesh and Anr. 2014, it can be established that it has been one o the landmark judgements in the jurisdiction of Code of Criminal Procedure (CrPC). The case quite briefly but also intrinsically discusses upon the Power of the Magistrate with regard to Cognizance as under Section 190 of the CrPC. The Magistrate as per Section 190 can take up cognizance of an offence committed if it has either been brought to his notice by the Police or by the receipt of any complaint and also if he by his own knowledge gets to know that such an offence has been committed. The scope of section 190 of CrPC has been discussed by the honourable Supreme Court and the Magistrate has been given the power to continue to proceed further or drop action in any matter on his ow will even after receiving the final report on the matter by the Police.
Not only this but also this case has also been an evident proof of declaring the Supreme Court as Court of Record because the in the current case mentioned above the Honourable Supreme Court has cited its older judgements and thus came to a conclusion based on them only.
written by SHRIKRISHNA GOYAL, BA.LLB. 6th Semester, IMS LAW COLLEGE
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