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The Allahabad High Court has recently observed that provisions of Section 210 of the Code of Criminal Procedure,1973 (“Code”) are attracted in cases where a complaint case & police investigation is being proceeded against the same person in respect of the same offence.
The Division Bench of Justice Vivek Agarwal and Justice Pankaj Naqvi while rejecting the writ petition that stated that once the learned Magistrate decides to take recourse and proceed under Chapter XV of the Code then unless the learned Magistrate at the stage of Section 202 Cr.P.C itself directs for investigation to be conducted by police, the matter cannot be investigated by the police.
In the present matter, an F.I.R. was lodged against the petitioner by Sri Swami Gopanand Ban Maharaj (Respondent No. 4) on 9.12.2018 under Sections 420/467/468/471/506 of the Indian Penal Code,1860 (I.P.C.). On 07.01.2019, a final report was submitted. On 24.4.2019, Respondent no. 4 filed a protest before the Ld C.J.M., Mathura, who on 23.12.2019 rejected the final report and directed the matter to be treated as a complaint fixing the date for statements under Section 200 Cr. P.C. Meanwhile, the petitioner (Namdev Sharma) lodged two F.I.R.'s against Respondent No 4 relating to forgeries and illegalities committed on 11.10.2019 and 25.10.2019 as Case Crime Nos.930/2019, u/s 420/467/468/471/504/506/120-B I.P.C. & 964/2019, u/s 420/406/506 IPC. On 20.02.2020, after investigation, a charge-sheet was submitted in Case Crime No.964/2019 against respondent no.4. Respondent No 4 preferred an application dated 14.9.2020 before the I.G., Agra Zone, not being satisfied with the investigation. On the same date, he directed the S.S.P., Agra, to get all the 3 matters investigated by the Crime Branch & directed to submit a progress report by 30.9.2020. Consequently, investigation of all the 3 cases was handed over to the Crime Branch on 16.9.2020. Thus, the petitioner has filed the present petition challenging the orders dated 14.9.2020 and 16.9.2020.
The Bench observed that, “It is well settled that in the event a police report is submitted disclosing commission of no offences before the Magistrate concerned, then such Magistrate shall have the following options:
The Court relied on the Supreme Court judgments in “Abhinandan Jha vs. Dinesh Mishra, AIR 1968 SC 117, H.S. Bains vs. State of U.P., AIR 1980 SC 1883, India Carat Pvt. Ltd. vs. State of Karnataka, AIR 1989 SC 885, Bhagwant Singh vs. Commissioner of Police, (1985) 2 SCC 537 and Vishnu Kumar Tiwari vs. State of U.P., (2019) 8 SCC 27.”
In order to ascertain as to whether a protest petition could be treated as complaint or not, the Bench placed reliance on the Supreme Court judgement in Vishnu Kumar Tiwari vs. State of U.P., (2019) 8 SCC 27 in which it was observed that, “ If a protest petition fulfills the requirement of a complaint, the Magistrate may treat the protest as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code.”
Further, upon perusal of Section 210 of the Code, the Court observed that “Section 210 is a self-contained provision that provides a mechanism to deal with such situations where a complaint case and police investigation regarding the same offence are being proceeded.”
Thus, the Bench while disposing of the writ held that the orders impugned relating to transfer of investigation and handing over the cases to the Crime Branch did not suffer from any error apparent on the face of record.
“It is an undisputed position that the Magistrate is not bound with the conclusion of the police report, opining that no offence is made out and that in an appropriate case the Magistrate can take cognizance u/s 190(1)(a) of the Code on the basis of protest petition.”, the Court noted.
Case Title: Namdev Sharma v. State of U.P. and Others
Law Point: Section 190(1)(a),200, 202, 210 of the Code of Criminal Procedure,1973
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