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Rajasthan High Court · body

1998 DIGILAW 37 (RAJ)

Trilok Chand v. State

1998-01-08

AMRESH KUMAR SINGH

body1998
Honble SINGH, J. – Heard the learned counsel for the petitioners, learned Public Prosecutor and learned counsel for non- petitioner No. 2. (2). By this petition under Section 482 Cr.P.C. the petitioners have prayed that the order dated 4.7.1996 passed by the learned Special Judge SC/ST (Prevention of Atrocities) Cases-cum-Additional Sessions Judge, Bikaner and the order dated 13.1.1995 passed by the learned Civil Judge (Junior Division) and Judicial Magistrate, First Class, Bikaner, whereby he issued process against the petitioners in respect of offences punishable under Sections 406 and 498-A I.P.C. be quashed and set aside and the proceedings instituted against the petitioners be dropped. (3). The facts of the case so far as they are relevant for the disposal of the peti- tion may be summarised as below: (4). Non-petitioner No. 2 Smt. Indira Devi is the wife of petitioner No. 1 Trilok Chand. Their marriage took place on 8.12.1982 at Bikaner. Non-petitioner No. 2 Smt. Indira Devi filed a complaint against Trilok Chand, Hira Lal, Smt. Rama Devi, Hari Kishan, Sharda, Madhu, Kanchan, Durga and Ishwar Ram alleging the commi- ssion of offences under Sections 498-A and 406 I.P.C. The complaint was sent to the Station House Officer of the Police Station Naya Shahar under Section 156 (3) Cr.P.C. In compliance of the order passed by the learned Judicial Magistrate the police registered the first information report No. 110/91 and commenced investigation. (5). During investigation a compromise was effected between the parties and a final report was submitted by the police under Section 173 (2) Cr.P.C. (6). On submission of the final report the learned Judicial Magistrate issued notice to the complainant Smt. Indira Devi. She appeared through her counsel and time was sought for filing protest petition. (7). A protest petition was filed by non-petitioner No. 2 on 25.10.1994. After hearing arguments the learned Judicial Magistrate fixed 26.10.1994 for orders. (8). On 26.10.1994 before the order could be pronounced, an application was submitted on behalf of the non-petitioner No. 2 stating therein that non-petitioner No. 2 wanted to produce her evidence. On the same day the learned Judicial Magistrate allowed the application filed on behalf of the non-petitioner No. 2 and adjourned the hearing for the production of the evidence of non- petitioner No.2. (9). On 1.12.1994 non-petitioner No. 2 was examined. On 13.12.1994 her wit- nesses Manak Chand and Akhey Chand were examined. On the same day the learned Judicial Magistrate allowed the application filed on behalf of the non-petitioner No. 2 and adjourned the hearing for the production of the evidence of non- petitioner No.2. (9). On 1.12.1994 non-petitioner No. 2 was examined. On 13.12.1994 her wit- nesses Manak Chand and Akhey Chand were examined. On 10.1.1995 arguments were heard and on 13.1.1995 the learned Judicial Magistrate issued process against the petitioners, in respect of the offences punishable under Sections 406 and 498-A I.P.C. (10). Feeling aggrieved by the order dated 13.1.1995 the petitioners filed a revision petition No. 15/95/28/95. The revision petition was disposed of by the lear- ned Special Judge SC/ST (Prevention of Atrocities) Cases-cum-Additional Sessions Judge, Bikaner vide order dated 4.7.1996. The learned Additional Sessions Judge held that the revision petition was not maintainable because the order taking cognizance and issuing process was an inter-locutory order. It was further observedby the learned Additional Sessions Judge that the accused persons could raise objec- tion against the taking of cognizance before the learned Judicial Magistrate. (11). Feeling aggrieved by the order passed by the learned Judicial Magistrate and the order passed by the learned Additional Sessions Judge the petitioners have approached this Court under Section 482 Cr.P.C. with a prayer that proceedings initiated against them should be quashed. (12). During the hearing the learned counsel for the petitioners brought to the notice of this Court that in the year 1993 another complaint had been filed by Smt. Indira Devi and that complaint was also sent to the Station House Officer, Naya Shahar under Section 156(3) Cr.P.C. and the first information report No. 99/93 was registered at the police station Naya Shahar District Bikaner on the basis of the com- plaint filed by Smt. Indira Devi. (13). The learned counsel for non-petitioner No.2 has submitted that the police after investigating the case relating to first information report No. 99/93 has submitted a charge-sheet under Section 173 (2) Cr.P.C. in the Court of learned Judicial Magistrate, Bikaner and that case is still in the Court. A certified copy of the first information report No. 99/93 has been produced before me for perusal by the learned counsel for the petitioner. (14). A perusal of the record shows that two cases were registered at police station Naya Shahar, Bikaner. A certified copy of the first information report No. 99/93 has been produced before me for perusal by the learned counsel for the petitioner. (14). A perusal of the record shows that two cases were registered at police station Naya Shahar, Bikaner. The first case No. 110/91 was registered on 2.5.1991 and second case No. 99/93 was registered in the year 1993. After conducting investi- gation in respect of first information report No. 110/91, the Station House Officer of the Police Station, submitted a final report No. 45/91. When notice was issued to the complainant a protest petition was filed on 25.10.1994. On the basis of the protest petition cognizance was taken on 26.10.1994 when learned Magistrate decided to conduct inquiry under Sections 200 and 202 Cr.P.C. The learned Judicial Magistrate did not take cognizance under Section 190 (1) (b) Cr.P.C. on the basis of the final report No. 45 dated 24.7.1991 submitted by the Police under Section 173 (2) Cr.P.C. after investigating the first information report No. 110/91. Therefore, it is proper to hold that the learned Judicial Magistrate has not taken cognizance on the basis of the final report No. 45/91. (15). It is evident from the record that the learned Judicial Magistrate made up his mind to make an inquiry under Sections 200 and 202 Cr.P.C., when an appli- cation was filed before him on 26.10.1994 on behalf of non-petitioner No. 2, in which it was stated, that non-petitioner No. 2 wanted to produce her evidence. The protest petition was already pending before the learned Judicial Magistrate on that day. It is, therefore, proper to infer that the learned Judicial Magistrate took cognizance of the offence under Sections 406 and 498-A I.P.C. on the basis of the protest petition filed on 25.10.1994, when on 26.10.1994 he made up his mind to conduct inquiry under Sections 200 and 202 Cr.P.C. In view of the law laid down by Honble Supreme Court in R.R. Chari vs. State of U.P. (1), it must be said that the learned Judicial Magistrate took cognizance on the basis of the complaint dated 25.10.1994 when he decided to conduct inquiry under Sections 200 and 202 Cr.P.C. and gave opportunity to the non- petitioner No. 2 to produce her evidence vide order dated 26.10.1994. (16). (16). The crucial question that arises for decision is whether the learned Judicial Magistrate was competent to conduct an inquiry under Sections 200 and 202 on 1.12.1994 and 13.12.1994 when the second first information report No. 99/93 was being investigated by the Station House Officer, Naya Shahar. (17). The learned counsel for the non-petitioner No. 2 has stated that the police had not submitted the challan relating to first information report No. 99/93 before 1.12.1994. These facts shows that the learned Judicial Magistrate conducted inquiry under Sections 200 and 202 Cr.P.C. when the investigation relating to first informa- tion report No. 99/93 was in progress. Section 210 Cr.P.C. reads as below : Procedure to be followed when there is a complaint case and Police investigation in respect of the same offence: (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject- matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the stigation. (2) If a report is made by the estigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or by together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code. (18). Since the criminal case relating to first information report No. 99/93 was registered on 21.4.1993 and was pending during the period from 26.10.1994 to 13.1.1995, the provisions of Section 210 (1) were applicable to the case. (18). Since the criminal case relating to first information report No. 99/93 was registered on 21.4.1993 and was pending during the period from 26.10.1994 to 13.1.1995, the provisions of Section 210 (1) were applicable to the case. It was the bounden duty of the complainant to have brought to the notice of the learned Judi- cial Magistrate that the investigation relating to first information report No. 99/93 was pending and it was the duty of the learned Judicial Magistrate to have stayed the proceedings under Sections 200 and 202 Cr.P.C., viewed of the provisions of Section 210 Cr.P.C. Assuming that the learned Judicial Magistrate was competent to take cognizance of the offence on 26.10.1994 on the basis of the protest petition dated 25.10.1994, it was necessary for him to have stayed the proceedings before him and called the report of the investigation being conducted relating to first information report No. 99/93. He could resume the inquiry under Sections 200 and 202 Cr.P.C. after receiving the report from the police conducting investigation. In the instant case it appears that the learned Judicial Magistrate did not comply with the provisions of Section 210 (1) Cr.P.C. The learned Judicial Magistrate did not call for report from the police conducting investigation relating to first information report No. 99/93. In view of these facts it must be said that the inquiry which was conducted by the learned Judicial Magistrate on 1.12.1994 and 13.12.1994 was in contravention of Section 210 (1) Cr.P.C. The issue of process vide order dated 13.1.1995 must, therefore, be held to be in contravention of provisions of Section 210 (1) Cr.P.C. (19). For reasons mentioned above this petition deserves to be allowed. The order dated 13.1.1995 is, therefore, quashed and set aside. (20). Since a charge-sheet is reported to have been filed in the Court of learned Judicial Magistrate after completing investigation relating to first information report No. 99/93, it is directed that the learned Judicial Magistrate will consider whether he should proceed under Section 210 (2) or under Section 210(3) Cr.P.C. In case the offence of the accused persons (in both the cases) are same the two cases will have to be tried together as a police case which according to the learned counsel for the non- petitioner No. 2 has already been instituted on the basis of the charge-sheet filed by the police. In case the offences of the accused persons in two cases are different the learned Judicial Magistrate will be free to act according to provisions of Section 210(3) Cr.P.C. (21). The petition is disposed of accordingly. A copy of the order along with record be returned to the learned Judicial Magistrate for information and necessary action.