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Rajasthan High Court · body

1998 DIGILAW 824 (RAJ)

Inder Singh v. Asha Ram

1998-08-03

AMRESH KUMAR SINGH

body1998
Honble SINGH, J.–Heard learned counsel for the petitioner, learned counsel for the non-petitioner No.1 and the learned Public Prosecutor. (2). This petition under Section 482 of the Code of Criminal Procedure, 1973 is directed against the order dated 4.8.93 passed by the learned District and Sessions Judge, Bikaner in Criminal Revision petition No.2/93 Asha Ram vs. Inder Singh and Ors. By the above mentioned order, the learned District and Sessions Judge allowed the revision petition and quashed the order of taking cognizance passed by the Judicial Magistrate No.3 Bikaner. (3). The facts of the case so far as they are relevant may be summarised as below. On the basis of a report in writing submitted by Inder Singh (petitioner in this case), the Dy.S.P., Bikaner directed the registration of the case and investiga- tion. In pursuance of the direction given by the Dy.S.P., F.I.R. No.101/91 was registered at Police Station. Pugal, Distt. Bikaner in respect of the offence under Section 420 of the Indian Penal Code. In his report, the petitioner Inder Singh alleged that he is a resident of 11 KJD and was the owner of 25 bighas of land bearing chak No.143/13 situated in 11 KJD. It was further stated in the report that Inder Singh executed an agreement in favour of Asha Ram and there by delivered the possession of his land for three years for purpose brick kiln. On the request of Asha Ram, the power of attorney was also executed by Inder Singh in favour of Asha Ram. After the expiry of the period of three years, when Inder Singh asked Asha Ram to vacated the land, the latter did not vacate the same and forcibly removed Inder Singh and his goods from the land and also caused injuries to Inder Singhs wife and daughters. (4). After conducting the investigation, the Station House Officer of the Police Station, Pugal submitted a final report in the case. In the report submitted under Section 173(2) of the Code of Criminal Procedure, the Station House Officer stated that Inder Singh had obtained the sums of Rs. 1,75,000/- and Rs. 30,000/- from Asha Ram and signed a receipt for the same and Asha Ram obtained permission from the competent authority for sale of land and thereafter a registered sale-deed was executed and necessary steps were taken for correction in the revenue record. 1,75,000/- and Rs. 30,000/- from Asha Ram and signed a receipt for the same and Asha Ram obtained permission from the competent authority for sale of land and thereafter a registered sale-deed was executed and necessary steps were taken for correction in the revenue record. The sale- deed executed by Asha Ram was in favour of his wife Smt. Heera Devi. In the opinion of the Station House Officer of Police Station, Pugal, no prima facie case under Section 420 of the Indian Penal Code is made out. (5). After the submission of the final report, the learned Judicial Magistrate issued notice to the complainant-petitioner in that sense. On 30.4.92, the counsel for the petitioner. Submitted an application in the Court of the learned Judicial Mag- istrate No.2, Bikaner and by that application prayed that cognizance of offence under Sections 420, 467 and 468 of the Indian Penal Code be taken or further investigation should be directed under subsection (8) of Section 173 of the Code of Criminal Procedure, 1973. This application did not contain the facts constituting any offence as is required by clause (a) of sub-section (1) of Sec. 190 of the Code of Criminal Procedure, 1973. The learned Judicial Magistrate, on request of the counsel for the petitioner fixed 2.5.92 for arguments. On 2.5.92 the counsel for the petitioner sought further time for arguments and the case was adjourned to 4.5.92. On 4.5.92, again time was sought for arguments. None of the order-sheets dated 30.4.92 to 4.5.92 show that the learned Magistrate took cognizance of the offence under clause (a) of sub-Section (1) of Section 190 of the Code of Criminal Procedure, 1973. On 6.5.92, the counsel for the petitioner (complainant) prayed for time for producing evidence and on his request, the case was adjourned to 14.5.92. On 14.5.92, the statement of Surendra Kumar was recorded and for further evidence, the case was adjourned to 15.5.92. On 15.5.92, the statements of Inder Singh and Puran Singh were recorded and the arguments were heard and the case was fixed for orders. On 22.5.92, the learned Judicial Magistrate passed the order directing the issue of bailable warrants against accused persons. (6). The accused persons filed the revision petition in the Court of District and Sessions Judge, Bikaner. On 15.5.92, the statements of Inder Singh and Puran Singh were recorded and the arguments were heard and the case was fixed for orders. On 22.5.92, the learned Judicial Magistrate passed the order directing the issue of bailable warrants against accused persons. (6). The accused persons filed the revision petition in the Court of District and Sessions Judge, Bikaner. After hearing the arguments of the parties and considering the facts and circumstances of the case, the learned Sessions Judge, Bikaner vide order date 4.8.93 allowed the revision petition and quashed and set aside the order dated 22.5.92 passed by the learned Judicial Magistrate No.2, Bikaner. Feeling aggrieved by the order passed by the learned Sessions Judge, Bikaner the petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973. (7). Learned Counsel for the petitioner has submitted that the order dated 22.5.92 passed by the learned Judicial Magistrate No.2 Bikaner was legally valid and just and proper and the learned Sessions Judge, Bikaner had no justification for setting aside that order. He has prayed that the order passed by the learned Sessions Judge, Bikaner be set aside and the order of the learned Judicial Magistrate be restored. (8). Learned counsel for the non-petitioner No. 1 has opposed this petition and submitted that the order passed by the learned Sessions Judge, Bikaner on 4.8.93 was just and proper because neither the Judicial Magistrate No.2, Bikaner was justified in issuing process against the accused persons for the offence under Section 420 of the Indian Penal Code nor on facts there was any justification for doing so and the dispute, if any between the petitioner Inder Singh and the non-petitioner No.1, was of a civil nature. (9). After hearing the learned counsel for the parties and perusing the record of the case, I do not deem it fit to decide the question whether the dispute between the parties is or is not merely of civil nature because in order such a question may be decided, the proceedings must be validly instituted in a competent Court. In those cases, where the proceedings have not been validly instituted in the court, such questions may not be decided lest any prejudice may be caused to any party, for want of sufficient opportunity to produce evidence either in favour or in rebuttal of the allegations made in the Case. (10). In those cases, where the proceedings have not been validly instituted in the court, such questions may not be decided lest any prejudice may be caused to any party, for want of sufficient opportunity to produce evidence either in favour or in rebuttal of the allegations made in the Case. (10). In the instant case I am of the opinion that the order dated 22.5.92 passed by the learned Judicial Magistrate No.2, Bikaner was illegal in as must as he had no material before him to take cognizance of the alleged offence under Section 420 of the Indian Penal Code and the order of issuing process against the accused persons passed without properly taking cognizance of the offence. (11). Sub-Section (1) of Section 190 of the Criminal Procedure Code,1973 provides that a Magistrate may take cognizance either on the basis of a complaint containing facts constituting offence/offences or on the basis of a Police report (submitted under Section 173 of the Criminal Procedure Code, 1973) containing facts constituting the offence or on the basis of his own knowledge or information received from any person other than Police Officer about such facts as constituting the offence. In the instant case, the Station House Officer of the Police Station Pugal submitted a final report under Section 173 of the Criminal Procedure Code,1973 after conducting investigation and he clearly mentioned therein that the dispute was of Civil nature and offence under Section 420 of the Indian Penal Code was not made out. The learned Judicial Magistrate No.2, Bikaner did not take cognizance on the basis of the report submitted by the Police under Section 173 of the Criminal Procedure Code,1973 or on the basis of the documents submitted with the report. Hence it can be said without any hesitation that the learned Judicial Magistrate did not take cognizance of the offence under clause (b) of sub-Section (1) of Section 190 of the Criminal Procedure Code, 1973. (12). The learned Judicial Magistrate No.2, Bikaner did not take cognizance of the offence on his personal knowledge nor he appears to have taken cognizance of the offence on the basis of information received from any person other than Police Officer as provided by clause (c) of sub-section (1) of Section 190 of the Criminal Procedure Code, 1973. (12). The learned Judicial Magistrate No.2, Bikaner did not take cognizance of the offence on his personal knowledge nor he appears to have taken cognizance of the offence on the basis of information received from any person other than Police Officer as provided by clause (c) of sub-section (1) of Section 190 of the Criminal Procedure Code, 1973. Therefore, it cannot be said that the learned Judicial Magistrate took cognizance of the offence under clause (c) of sub-section (1) of Section 190 of the Criminal Procedure Code, 1973. As regards taking cogni- zance of the offence under clause (a) of sub-section (1) of section 190 of the Criminal Procedure Code, 1973 is concerned, there was no complaint oral or in writing before the learned Judicial Magistrate requesting him to take action against the alleged offenders for the offence under Section 420 of the Indian Penal Code and containing facts constituting any offence. The expression `` Complaint has been defined in the following words :- `` Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a Police report. His explanation :- A report made by a Police Officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the Police Officer by whom such report is made shall be deemed to be the complaint. (13). The definition contained in Section 2(d) of the Criminal Procedure Code, 1973 does not require that the complaint should contain facts constituting the offence but the words used in clause (a) of sub-Section (1) of Section 190 of the Criminal Procedure Code, 1973 required that the complaint must contain facts constituting an offence. Clause (a) of sub-section (1) of Section 190 of the Criminal Procedure Code, 1973 reads :- `(a) upon receiving a complaint of facts which constitute such offence. (14). The application dated 30.4.92 submitted before the learned Judicial Magistrate No.2, Bikaner by the counsel for the petitioner did not contain facts con- stituting the offence under Section 420 of the Indian Penal Code. (14). The application dated 30.4.92 submitted before the learned Judicial Magistrate No.2, Bikaner by the counsel for the petitioner did not contain facts con- stituting the offence under Section 420 of the Indian Penal Code. It is therefore, obvious that the learned Judicial Magistrate No.2, Bikaner could not have taken cognizance on the basis of application dated 30.4.92 nor he appears to have taken cognizance on the above mentioned application as is evident by the order sheets dated 30.4.92, 2.5.92 and 4.5.92 which show that case, after the submission of the application dated 30.4.92, was adjourned for arguments. (15). In view of the above facts and circumstances of the case, I have no hesitation in coming to the conclusion that the learned Judicial Magistrate did not take cognizance under clause (a) of sub-sec. (1) of Section 190 of the Criminal Procedure Code, 1973. Therefore, the inquiry conducted by him by examination of the petitioner and his witnesses cannot be regarded as an inquiry under Section 200 and 202 of the Criminal Procedure Code, 1973. In view of this conclusion, the order dated 22.5.92 could not have been passed by the learned Judicial Magistrate No.2, Bikaner because it is well established that the order issuing process to the accused persons, can be passed under Section 204 of the Criminal Procedure Code, 1973 only after taking cognizance and not otherwise. There was this clear want of jurisdiction in the matter of issue of process against accused persons, when the learned Judicial Magistrate passed the order dated 22.5.92. The learned Sessions Judge, Bikaner was, therefore, justified in quashing and setting aside that order. (16). I, therefore, do not find any legal infirmity in the order passed by the lear- ned Sessions Judge, Bikaner whereby he allowed the revision petition and set aside the order passed by the learned Judicial Magistrate No.2, Bikaner. (17). While parting with the case, it may be observed that once the learned Sessions Judge, Bikaner came to the conclusion that the order passed by the learned Judicial Magistrate was liable to be quashed as it was not shown by him that taking cognizance of the offence was according to law, it was not necessary for the learned Sessions Judge to have expressed any opinion whether the facts of the case do or do not show the commission of offence under Section 420 of the Indian Penal Code. It is, therefore, clarified that the observations made by the learned Sessions Judge in that behalf shall not stand in the way of any Court coming to an independent conclusion about the nature of dispute between the parties if an occasion for expressing any opinion regarding the dispute between the parties arises in future. Nothing contained in the order passed by the learned Sessions Judge, Bikaner shall stand in the way of the petitioner in filing an appropriate complaint before the competent Court if he is so advised. (18). The petition is disposed of accordingly.