- (1.) S. K. Phaujdar, J. Though the present application under Section 482, Cr. P. C. the applicant has desired that fur ther proceeding in Crl. Misc. Case No. 395 of 1997 (State v. Indra Pal and two others) u/ss. 406,504 and 506, IPC pending before the Xllth ACJM, Meerut, be quashed.
(2.) AN FIR in case Crime No. 10 of 1997 was lodged at P. S. Saruppur District Meerut, by one Neera against the present applicant and others for having declined to return her marriage gifts, which were in their possession in trust on behalf of the complainant. The police submitted a final report. The APO connected with the court of the Magistrate had, however, opined that prima facie materials were there for taking cognizance. The court thereafter recorded an order on 27-5-1997, stating that he had looked to the concerned papers and was satisfied that zprima facie case was made out against the accused persons. Accordingly, he declined to accept the final report and take cognizance for offences under Sections 406, 506 and 504, IPC against the applicants and others and summoned them to appear before the court. This order of the Xllth ACJM, Meerut, dated 27-5-1997 was challenged by the present applicant and others before the sessions court in Crl. Revision No. 269 of 1997 which was heard by the Vth Addl. Sessions Judge, Meerut, and the revision stood dismissed. Only thereafter the present application has been filed. It was contended on behalf of the applicant that under Section 190, Cr. P. C. the Magistrate could take congizance on the basis of a police report of facts which constitute an offence. It was contended that the police report in the shape of a final report did not speak of commission of any offence and, as such, the Magistrate was not empowered to lake cognizance. It was contended that under Section 172, Cr. P. C. the diary of the proceedings in investiga tion could be seen by a trial court but the same could not be used as evidence.
(3.) THIS contention of the applicant was sought to be supported by two decisions. The learned Counsel relied upon the judgment of the Allahabad High Court as 1998 Allahabad Crl. Cases at page 19. An Hon'ble single Judge of this High Court at the Lucknow Bench had before him a case in which accused persons were summoned despite submission of a final report. A protest petition was filed in that case and the Magistrate had rejected the final report without assigning any reason. There was no evidence on record in sup port of the protest petition to entitle the court to summon the accused. THIS order was quashed and the Magistrate was directed to record a fresh reasoned order. The learned Counsel further relied on another decision of the Allahabad High Court, again by an Hon'ble single Judge, as in 1997 JIC 724. It was also a case where the accused was summoned despite submis sion of a final report. The Magistrate had opined that he had perused the evidence and the affidavits etc. and the materials on record, but there was no specific mention that the final report was not acceptable nor was there any mention of the materials which warranted rejection of the final report. The summoning order was set aside and the matter was sent back to the CJM for consideration afresh according to law. In the instant case, there had been no protest petition and there was, there fore, no question of proceeding under Sec tion 200 or the subsequent provisions of the Cr. P. C. The final report submitted was an opinion of the police officer based on the materials collected during investiga tion. It cannot be the law that the Magistrate is bound by the opinion of the police officer. Cognizance means, amongst other things, taking judicial note of a particular matter for proceeding ac cording to law: When a final report is submitted before a Magistrate he is re quired not to act mechanically and to ac cept it but to look to the materials on which the final report was based and then form his opinion whether cognizance should be taken or not. Cognizance is a judicial process and application of mind must be there and if there had been an application of mind the order of cog nizance may not be said to be bad in law,;