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1997 DIGILAW 1225 (RAJ)

Sita Ram v. Raj Kumar Pandey

1997-10-14

AMRESH KUMAR SINGH

body1997
Honble SINGH, J.–Heard the learned counsel for the petitioner, the learned counsel for the non-petitioner No. 1 and the learned Public Prosecutor. (2). This petition under Section 482 Cr.P.C. is directed against the order dated 13th September, 1990 passed by the learned Sessions Judge, Churu whereby the learned Sessions Judge set aside the order dated 1st July, 1988 passed by the lear- ned Chief Judicial Magistrate, Churu. By the order dated 1st July, 1988 passed by the learned Chief Judicial Magistrate, Churu cognizance of offences punishable under Sections 452, 504 IPC and Section 4 read with 7 of Civil Rights Protection Act were taken on the basis of the final report submitted by the police. (3). It appears that the petitioner Shri Sita Ram lodged a First Information Re- port No. 198/87 at Police Station, Kotwali Churu. On the basis of that the police registered a case under Section 4/7 of the Civil Rights Protection Act and commenced investigation. (4). During investigation the police examined several witnesses. On completion of the investigation, the police submitted the final report alleging therein that the offence under Section 4/7 of the Civil Rights Protection Act was not made out. (5). The learned Chief Judicial Magistrate, Churu considered the final report and the documents submitted by the police under Section 173 Cr.P.C. and he deemed it fit to take cognizance of the offences under Sections 352 and 504 I.P.C. and under Section 4/7 of the Civil Rights Protection Act. He directed the issue of summons against the accused Shri Raj Kumar Pandey. (6). The accused Shri Raj Kumar Pandey (non-petitioner No. 1) filed the revision petition No. 49/88 in the Court of learned Sessions Judge, Churu against the order dated 1st July, 1988 passed by the learned Chief Judicial Magistrate. The learned Sessions Judge heard the arguments and considered the evidence collec- ted by the police during investigation. The learned Sessions Judge has observed in his order that by perusing the case diary he found that the witnesses, namely, Harphool Singh, Liyakat Ali, Shrawan Kumar, Hukmi Chand, Ramesh Kumar, Hakam Ali, Shanker Lal and Bhanwar Lal did not support the FIR in their statements recorded by the police and that Sita Ram (petitioner) was the only person, who su- pported the allegations made in the FIR. In view of the fact that the statement of Sita Ram was not corroborated by the statement of any other witness, the learned Sessions Judge came to the conclusion that there was no sufficient ground to proceed against the accused Raj Kumar Pandey. Consequently, the learned Sessions Judge allowed the revision petition and quashed and set aside the order dated 1st July, 1988 passed by the learned Chief Judicial Magistrate, Churu. (7). Feeling aggrieved by the order passed by the learned Sessions Judge, Churu, Sita Ram has come to this Court under Section 482 Cr.P.C. On 18th November, 1991 when the matter was placed before Honble Mr. Justice M.R. Calla, his Lordship observed that the order passed by the learned Sessions Judge, Churu on 13th September, 1990 was right. However, it was urged before his Lordship that while setting aside the order passed by the learned Chief Judicial Magistrate, Churu, it was necessary for the learned Sessions Judge to have remanded the case directing the lower court to proceed with the matter after recording the statements of the witnesses whom the complainant might like to produce. This petition was admitted for the consideration of the limited question whether an order remanding the case to the learned Chief Judicial Magistrate, Churu to proceed with the matter was necessary. (8). In view of the above fact, the only question to be decided in this case is whether it was necessary for the learned Sessions Judge, Churu to have directed a further inquiry within the meaning of Section 398 Cr.P.C. while setting aside the order passed by the learned Chief Judicial Magistrate. (9). In Abhinandan Jha vs. Dinesh Mishra (1) the Honble Supreme Court has pointed out that on submission of a final report under Section 173 Cr.P.C. the Magistrate may either accept the final report or he may direct a further inquiry under Section 156(3) Cr.P.C. or he may take cognizance of the offence/offences under Clause (b) of sub-sec. (1) of Section 190 Cr.P.C. notwithstanding the opinion of the police. It was further pointed by the Honble Supreme Court that the powers of the Magistrate under Section 190 Cr.P.C. are to be exercised judicially. The Magistrate is not bound to agree with the opinion of the police and he has to consider judicially whether he should or should not take the cognizance of offence against one or more accused persons. It was further pointed by the Honble Supreme Court that the powers of the Magistrate under Section 190 Cr.P.C. are to be exercised judicially. The Magistrate is not bound to agree with the opinion of the police and he has to consider judicially whether he should or should not take the cognizance of offence against one or more accused persons. In view of the law laid down by the Honble Supreme Court in Abhinandan Jha vs. Dinesh Mishra (supra), when the final report is submitted before the Magistrate, the three alternative courses are : (a) to accept the final report; (b) to direct further investigation under Sec. 156(3) Cr.P.C. and (c) to take cognizance of the offence under Clause (b) of sub-sec. (1) of Section 190 Cr.P.C. (10). It is true that before passing an order on the final report submitted by the police, the Magistrate has to issue a notice to the complainant and give him an opportunity of hearing but the object of the judicial application of mind is none else but to select one of the three alternative courses as pointed out by the Honble Supreme Court in Abhinandan Jhas case (supra). When the complainant is given an opportunity of being heard, after the submission of a final report by the police, the object is firstly to apprise the complainant of the action taken by the police, secondly to enable him to make his submissions about the investigation as well as the opinion formed by the police so that if the Magistrate comes to the conclusion that further investigation should be done, he may pass an order under Section 156(3) Cr.P.C. and in case the complainant makes any submission against the opi- nion formed by the police, the Magistrate may after hearing him and of course applying his mind judicially to the case, form an opinion that whether he should or should not take cognizance or issue process against one or more accused persons. In case the Magistrate after hearing the prosecution and the complainant and perusal of the final report and the documents attached to it, comes to the conclu- sion that cognizance should be taken by him, he may proceed to take cognizance under Section 190(1)(b) Cr.P.C. and he may issue process against the accused persons if there be sufficient ground to adopt that course. If the Magistrate considers it fit to direct further investigation under Section 156(3) Cr.P.C. all that is required to be done by him is to make such direction and it would be for the police to make further investigation and submit another report under Section 173 Cr.P.C. If the Magistrate adopts the third course i.e. he accepts the final report and declines to issue process against any accused persons, he may adopt that course by passing necessary orders. In such a case the complainant would be required to consider whether he should or should not file a complaint under Section 190(1)(a) Cr.P.C. In case the complainant files a complaint under Section 190(1)(a) Cr.P.C. In case the complainant files a complaint under Section 190(1)(a) Cr.P.C. the Magistrate may take cognizance on that complaint under Section 190(1)(a) and he may proceed to examine the complainant under Section 200 Cr.P.C. After examination of the complainant under Section 200, the Magistrate may either issue process agai- nst the accused person without any adjournment or postponement of the inquiry or he may adjourn or postpone the inquiry under Section 202 and may allow the complainant to produce such witnesses as he may desire to produce in support of the complaint. After the recording of the statements of the complainant and witnesses under Section 200 and 202 Cr.P.C., if the Magistrate comes to the conclu- sion that there is no ground to proceed, the Magistrate may dismiss the complaint under Section 203. If the Magistrate finds sufficient ground to proceed against one or more accused persons, he may proceed under Section 204 and in case he is in doubt, he may direct investigation by the police under Section 202 Cr.P.C. and after receipt of the report of investigation done by the police under Section 202 Cr.P.C. he may make up his mind whether he should issue process under Section 204 or dismiss the complaint under Section 203 Cr.P.C. (11). It is thus obvious that the question of conducting an inquiry under Section 200 and 202 Cr.P.C. would arise in those cases only in which cognizance is taken by the Magistrate under Section 190(1)(a). It is thus obvious that the question of conducting an inquiry under Section 200 and 202 Cr.P.C. would arise in those cases only in which cognizance is taken by the Magistrate under Section 190(1)(a). Sometimes, the complainant may file a complaint enabling the Magistrate to take cognizance under Section 190(1)(a) and in such cases the Magistrate may conduct an inquiry under Section 200 and 202 Cr.P.C. so far as those cases are concerned in which the police has submitted a final report, but the complainant has not filed any complaint under Section 190(1)(a), the question of conducting an inquiry under Section 200 and 202 Cr.P.C. would not arise, because cognizance of the offence has not been taken in such cases by the Magistrate under Section 190(1)(a) Cr.P.C. (12). In the instant case there is nothing to show that the complainant filed any complaint before the learned Chief Judicial Magistrate, Churu enabling him to take offence or offences under Section 190(1)(a) Cr.P.C. Therefore, the question of conducting an inquiry under Section 200 and 202 Cr.P.C. by the learned Chief Judicial Magistrate did not arise. All that was before him was that the final report and the documents contained in the case diary and the impugned order dated 1st July, 1988 was passed by him on the basis of the final report and the documents in the case diary. When the revision petition was filed before the learned Sessions Judge, the only question with the learned Sessions Judge was required to decide was whether on the basis of the final report and the documents contained in the case diary, there was or was not sufficient ground to proceed against the accused Raj Kumar Pandey. The learned Sessions Judge has categorically come to the conclusion that there was no sufficient ground to proceed against the accused Shri Raj Kumar Pandey. He, therefore, set aside and quashed the order dated 1st July, 1988 passed by the learned Chief Judicial Magistrate. In these circumstances, the question of directing a further inquiry under Section 398 Cr.P.C. did not and could not arise. The contention of the learned counsel for the petitioner that while setting aside the order dated 1st July, 1988 passed by the learned Chief Judicial Magistrate, Churu, the learned Sessions Judge should have directed a further inquiry does not appear to be tenable for the reasons already mentioned. (13). The contention of the learned counsel for the petitioner that while setting aside the order dated 1st July, 1988 passed by the learned Chief Judicial Magistrate, Churu, the learned Sessions Judge should have directed a further inquiry does not appear to be tenable for the reasons already mentioned. (13). I, therefore, find no force in this petition. It deserves to be dismissed and is hereby dismissed. Before parting with the case, it would be necessary to point out that nothing contained in this order will preclude the complainant from filing a complaint under Section 190(1)(a) before the competent court, subject of course to the provisions relating to limitation.