- (1.) S. K. Jain, J. This application under Section 482, Cr. P. C. has been made to stay the effect and operation of order dated 18. 1. 2008 passed by Chief Metropolitan Magistrate, Kanpur Nagar in Misc. Case No. 711 of 2007 in Case Crime No. 487 of 2007 under Sections 323, 504,506,498-A, IPC and Section 3/4 Dowry Prohibition Act, Police Station Chakeri, District Kanpur Nagar and also to stay further proceedings of the aforesaid case.
(2.) THE facts to this case are that applicant lodged an FIR on 13. 6. 2007 at Police Station Chakeri, which was registered as Case Crime No. 487 of 2007 under Sections 323,504,506,498-A, IPC and Section 3/4 Dowry Prohibition Act. THE Investigating Officer during investigation recorded the statement of applicant, her mother, father and brother under Section 161, Cr. P. C. , but the police submit ted the final report in favour of respondent No. 1. THE applicant filed protest peti tion on 17. 9. 2007 before the Chief Metropolitan Magistrate, Kanpur Nagar and the learned Chief Metropolitan Magistrate rejected the final report submitted by the police and registered the protest petition as a complaint case. It has been argued by the learned Counsel for the applicant that on the basis of FIR and medical report of the applicant and statements recorded under Section 161, Cr. P. C. , the case under Sections 323, 504, 506, 498-A, IPC and Section 3/4, Dowry Prohibition Act was made out and the learned Magistrate erred in treating the protest petition as a complaint case. The learned Magistrate could ignore the conclusion arrived at by the Investigating Officer that no case against respondent No. 1 was made out and on the basis of statement of com plainant, her mother, father and brother recorded, the learned Magistrate under Section 190 (1) (b) could direct the issue of process to the accused. The Hon'ble Apex Court in the case of M/s. India Carat Pvt. Ltd. v. Sfate of Karnataka and another, AIR 1989 SC 885, has laid down in Para 16 as follows: Para 16. The position is, therefore, now well settled that upon receipt of a police report under Section 173 (2) a Magistrate is entitled to take cogni zance 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, in exercise of 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. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.
(3.) LEARNED Counsel for the applicant has cited the case of Sanjay Bansal and another v. Jawaharial Vats, 2007 (59) ACC1050, in which a similar view was taken by the Hon'ble Apex Court. In the case of Pakhando and others v. State of U. P. and another, 2001 (43) ACC 1096, it has been laid down by this Court that when a final report is submit ted in a case and is received by the Magistrate the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require: (i) he may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (ii) he may take cognizance under Section 190 (1) (b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (iii) he may order further investigation, if he is satisfied that the investiga tion was made in a perfunctory manner; or (iv) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190 (1) (a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202, Cr. P. C. and thereafter decide whether complaint should be dismissed or process should be issued.;