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1998 DIGILAW 413 (RAJ)

Mahaveer v. Poona Devi

1998-03-24

AMRESH KUMAR SINGH

body1998
Honble SINGH, J.–Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the non-petitioner No. 2. (2). This criminal revision petition is directed against the order dated 2nd February, 88 passed by the Munsif and Judicial Magistrate, Ladnu in complaint case No. 44/86. By the above mentioned the Munsif and Judicial Magistrate, Ladnu accepted the final report submitted by the police and dismissed the protest petition. (3). The petitioners case is that on 22nd March, 86 he gave some old ornaments to Smt. Poona Devi (non-petitioner No. 1) so that by utilising the gold of those ornaments, new ornaments as desired by the petitioner may be manufactured by Dalam Chand (non-petitioner No. 2), who is the husband of non-petitioner No. 1. Dalam Chand carries on the business of manufacturing gold and ornaments at his shop. According to petitioner, at the time of delivery of ornaments to the non-petitioner No. 1, the ornaments were weighed and agreement was executed in presence of witnesses by the non-petitioner No. 1. The agreement was scribed by Shri Jai Chand. According to petitioner, the non-petitioners did not manufacture the new ornaments nor they returned the old ornaments to the petitioner and mis-appropriated them. The petitioner approached the police to register a case, but his prayer was declined, therefore, he filed a complaint on 2nd June, 86 in the court of Munsif and Judicial Magistrate, Ladnu alleging the commission of offences u/Ss. 420 and 406 IPC. (4). The complaint was sent to the S.H.O. of the police station, Ladnu u/S. 156(3) Cr.P.C. The police registered the F.I.R. No. 56/86 and after investigation sub- mitted a final report. (5). Smt. Poona Devi (non-petitioner No. 2) submitted a report in writing at Police Station, Ladnu on 24th May, 86, in which she alleged that she did not execute any agreement nor obtained any ornaments from the petitioner Mahaveer and that her thumb impressions were obtained on stamp papers as well as on blank papers in a fraudulent manner. She prayed that action be taken against Mahaveer and others for having committed offences u/Ss. 420, 467, 468, 471 and 384 IPC. On the basis of the report of Smt. Poona Devi, the S.H.O. of the Police Station, Ladnu registered the F.I.R. No. 48/86 and after investigation submitted the charge-sheet u/S. 173 Cr.P.C. against the accused persons, namely, Mahaveer, Bhanwar Lal and Jai Chand. 420, 467, 468, 471 and 384 IPC. On the basis of the report of Smt. Poona Devi, the S.H.O. of the Police Station, Ladnu registered the F.I.R. No. 48/86 and after investigation submitted the charge-sheet u/S. 173 Cr.P.C. against the accused persons, namely, Mahaveer, Bhanwar Lal and Jai Chand. On the basis of the charge-sheet, the Munsif and Judicial Magistrate took cognizance of the offences and framed charges against the accused persons. (6). The Munsif and Judicial Magistrate, before whom the charge- sheet against the accused persons, namely, Mahaveer, Bhanwar Lal and Jai Chand and the final report relating to F.I.R. No. 516/86 had been filed after taking into consid- eration the facts and circumstances of the case, came to the conclusion that there was no reason to allow the protest petition. (7). It is well established that after the submission of the report u/s. 173 Cr.P.C., the Magistrate is required to apply his judicial mind to the report submitted by the police as well as the other documents with a view to find out whether any offence was in fact committed and if so whether he should take cognizance of such offence. The Magistrate is not bound to act according to the opinion expressed by the investigating agency. The discretion vested in the Magistrate u/S. 190 Cr.P.C. is a judicial discretion, which must be judicially exercised. It is open to the Magistrate to come the conclusion that the report submitted by the police u/s. 173 Cr.P.C. does not disclose the commission of any offence or that there is no sufficient ground to take cognizance of the offences or that the cognizance should not be taken in view of the bar imposed by any law. In the instant case, having regard to the fact that on the basis of evidence collected by the police, a challan had been filed against Mahaveer, Bhanwar Lal and Jai Chand as a prima facie case of forgery of agreement was made out against them, the learned Munsif and Judicial Magistrate, Ladnu could not take the cognizance of any offence on the basis of the complaint made by the petitioner, because when the very story alleged in the complaint was found to be false, it could not be said that any offence had been committed by the non- petitioner No. 2. The order dated 2nd February, 88 passed by the learned Munsif and Judicial Magistrate, Ladnu cannot be said to be illegal, improper or unjust. (8). For the reasons mentioned above, this petition has no force. It deserves to be dismissed and is hereby dismissed.