The Allahabad High Court has said that if the court of Additional Chief Judicial Magistrate is not in agreement with the protest application lodged by the complainant against the report of the Investigating Officer submitted before the court, the just and proper action needed on the part of the court was to read the protest petition as a complaint.
A single-judge bench of Justice Vikas Kunvar Srivastav passed this order while hearing a petition filed by Mahesh Chandra Dwivedi. The petition is moved under Article 227 of the Constitution of India invoking the supervisory jurisdiction of the High Court over its subordinate court against the order dated September 12, 2006 passed by the Additional Session Judge/Fast Track Court, Sultanpur in the capacity of the revisional court. The said revision was moved by the petitioner against the order dated April 20, 2006 passed by IIIrd, Additional Chief Judicial Magistrate in Criminal Case (Mahesh Chandra Dwivedi Vs. State of UP).
The facts of the case are that the petitioner was carrying on the business of tent and shamiana at Jamo Bazar, Sultanpur in the name and style ‘Sambal Tent House’. In the intervening night of 7/8.05.2005, a theft took place at his tent house by breaking the locks and doors of the back side, the thieves carried away almost all the articles of shamiana valued of approximately sum of Rs 1,00,000.
On coming to the knowledge of theft on the next morning, the petitioner rushed to the police station and immediately gave a written complaint which was not registered by the local police as First Information Report.
On May 19, 2005, after a delay of 11 days, the police registered the FIR bearing case under Section 379 IPC, Police Station Jamo, Sultanpur. The investigation started and ultimately a final report was submitted before the court on April 20, 2006.
The final report states that the report as to the incident of theft was false and lodged with a malafide motive of claiming insurance amount, there is no reason to proceed with the case.
The Court below accepted the final report despite a protest petition against the said report being there and summoned the complainant (petitioner) under Section 182 CrPC for criminal prosecution.
It is the order aggrieved from which the petitioner firstly moved a criminal revision which was heard by Additional Session Judge/FTC Court, Sultanpur who rejected the same.
The petitioner then came to the High Court with a petition stating illegality and irregularity in the orders passed by the Additional Session Judge/FTC Court which are given hereunder.
(i) The theft was committed by unknown thieves, therefore, police were to investigate the matter and burdened to find out the culprits.
(ii) The report was made on the morning of May 8, 2005 promptly within reasonably possible time from the commission of offence in the night of 7/8.05.2005 but police itself delayed in registering the FIR for 11 days on May 19, 2005. Meanwhile, no investigation could be started for want of registration of FIR.
(iii) The statement of natives of the locality was not recorded.
(iv) The police submitted a final report before the court without investigating the matter seriously, simply on speculation that the FIR of theft might have been lodged for claiming insurance falsely.
The counsel for the petitioner argued that now more than 15 years has already been elapsed from the date of incident and the witnesses of the incident who were native of the locality are not available so as to depose before the court with regard to the incident.
Also Read: Uttarakhand High Court dismisses PIL seeking directions to state govt to start police recruitment
The counsel for the petitioner further argued that the order was passed only on consideration of the case diary submitted by the police station and the final report was accepted on the basis of materials on case diary, however, case diary in itself have no material except a speculation as to the lodging of FIR for false claim of insurance.
Additional Government Advocate for the State argued that the counsel always tried to linger the case and as such a period of 15 years elapsed without proceeding with the petition, therefore, petition has become infructuous.
The argument of AGA is not tenable as the order passed by Additional Chief Judicial Magistrate, Sultanpur on April 20, 2006 consists of order of summoning to the complainant for prosecution with regard to false information of theft given to the police and the court.
The Court observed that, both the courts below erred in acting in accordance with the procedure on receiving the police report over a registered criminal case. On examining the order dated April 20, 2006, concluding para of the order of Additional Chief Judicial Magistrate, Sultanpur shows a conclusion “the goods stolen in the incident of theft are worth Rs 97,200 including mats, pillow and several other goods. Had the police been sincere for prompt action the stolen goods could have been recovered. The said sincerity and promptness undoubtedly justifies the conclusion of the Investigating Officer.”
The Court further observed that the court of Magistrate on the one hand reached at the conclusions that investigating officer was under fault to commit delay that’s why stolen goods could not be recovered, the consequence of such conclusion could be that the police who submitted final report as to the falsity of the First Information Report as to the theft in the shop of the petitioner was wrong. The protest application could have been treated as a complaint.
The speculation of police that the information as to the theft might have been lodged for the purpose of claiming insurance amount falsely could not be given weight by the Magistrate legally for holding the First Information Report lodged falsely. As such proceeding for action under Section 182 Cr.P.C. the order of the Magistrate dated April 20, 2006 is not tenable in the eyes of law.
Also Read: Allahabad High Court stays arrest of Wire editor and reporter in farmer death case
The Court said,
The protest application of the petitioner was not only rejected but also, without examining the truth or falsity of the FIR on evidence, the court of Additional Chief Judicial Magistrate proceeded under Section 182 Cr.P.C. for the prosecution of the complainant (petitioner) for lodging false reports.
If the court of Additional Chief Judicial Magistrate was not in agreement with the protest application lodged by the complainant against the report of Investigating Officer submitted before the court, the just and proper action needed on the part of the court was to read the protest petition as complaint, so that the informant (petitioner) could have been given opportunity to produce evidences and witnesses in support of complaint made to the police with regard to the theft in his shop.
As such, the order of the Additional Chief Judicial Magistrate, Sultanpur dated April 20, 2006 having been passed without affording opportunity to the petitioner for leading evidence in support of his claim.
Also Read: Allahabad High Court says sale certificate issued after auction can’t be cancelled
The Court has not properly examined on evidence judicially whether the report was false with regard to the theft, as lodged in the local police station on May 19, 2005, therefore, the order is not tenable in the eyes of law.
The Court stated that the order dated April 20, 2006 of Chief Judicial Magistrate, Sultanpur is suffering from illegality and the Additional Session Judge/Fast Track Court, Sultanpur was also wrong in confirming the order of the Magistrate his judgment September 12, 2006.
The Court ordered that, both the orders i.e., order dated September 12, 2006 passed by the Additional Session Judge/Fast Track Court, Sultanpur and the order dated April 20, 2006 passed by IIIrd, Additional Chief Judicial Magistrate (Mahesh Chandra Dwivedi Vs. State of UP) are set aside and writ petition is allowed.