Narayan Shukla, J. - (1.) Heard Mr.Manoj Kumar Gupta, learned counsel for the petitioner as well as Mr.R.P.Shukla, learned Additional Government Advocate. The petitioner has challenged the summoning order dated 10.9.2007, whereby the petitioner has been summoned for trial, as well as the order dated 9.6.2008, whereby the bailable warrant has been issued in a case arising out of Case Crime No.168-A/07, under Sections 376, 323, 506, 435 IPC, Police Station Devan, district Barabanki.
(2.) The learned counsel for the petitioner submits that although after investigation the police submitted the final report against the petitioner, but on the protest application moved by the complainant the learned Magistrate has taken cognizance absolutely on the materials, which are not the part of the police report and accordingly those materials cannot be considered for taking cognizance of an offence. In support of his contentions he cited a decision of the Division Bench of this court rendered in the case of Mathura Prasad and others v. State of U.P. and another, 2007 (1) ALJ 55 (DB) , in which this court has held that if the Magistrate after receiving protest petition and considering the police report proceeds to take cognizance under Section 190(1)(b) and issues process, he cannot look into any material other than placed before him alongwith the report. However, if he treats the protest petition as complaint and proceeds to record statement of the complainant and the witnesses and thereafter issue process, the evidence placed before him alongwith protest petition may be relevant and may be considered by him. He further cited a case rendered in the case of Mohammed Yusuf and others v. State of Uttar Pradesh and another, 2007 (58) ACC 971 , in which it has been held that where the Magistrate decides to take cognizance under Section 190(1)(b) ignoring the conclusions reached at by the Investigating Officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the Investigation Officer. Further he cited another decision rendered in the case of Surya Bhan v. State of U.P. and another, 2007 (58) ACC 126 , in which this court has held that where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled. Applying this principle to Section 190(1)(b), it becomes apparent that the Magistrate while taking cognizance of the offence under this Section cannot rely on any material other than the police report of such fact. The petitioner has brought on record only the police report submitted in favour of the petitioner without bringing on record the evidence recorded under Section 161 Criminal Procedure Code Therefore, it is very much difficult to ascertain as to what were the materials available before the police to submit the final report in favour of the petitioner, whereas the contents of the First Information Report, which are on record clearly disclose, prima facie, commission of offence by the petitioner under the aforesaid Sections.
(3.) In the case of Abhinandan Jha and others v. Dinesh Misra, AIR 1968 SC 117 , the Hon'ble Supreme Court has held that when the police report is submitted to the Magistrate it is always open to him to agree or disagree with the police report. If he agrees that there is no case made out for issuing process, he may accept the report and drop the proceedings. He may come to the conclusion that further investigation is necessary in that event he may pass an order to that effect. If ultimately the Magistrate is of the opinion that the facts set out in the police report constitute an offence, he can take cognizance of the offence, notwithstanding the contrary opinion expressed in the police report. It was observed therein that the Magistrate in that evet could take cognisance under Section 190(1)(c) of the Code. In the case of H.S. Bains v. State, 1981 (18) ACC 146 (SC) , the Hon'ble Supreme Court has held that the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses expressed in the police report submitted to the Magistrate under Section 173(2) Criminal Procedure Code The Magistrate may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. ;