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2001 DIGILAW 151 (GAU)

Jamuna Shah v. Bhupen Chandra Kalita

2001-05-25

P.G.AGARWAL

body2001
Heard Mr. K. Agarwal, learned counsel for the petitioners and Mr. JM Choudhury, learned counsel for the respondent. 2. This is an application under section 482, CrPC, for quashing of the Complaint Case No. 260/97 under section 427, IPC pending in the Court of Judicial Magistrate, 1st Class, Tinsukia. 3. The respondent complaint Bhuban Chandra Kalita filed a written complaint on 12.3.97 before the Chief Judicial Magistrate, Tinsukia alleging inter alia that on 11.1.97 the accused persons forcibly dismantled the stair case constructed by him and also removed certain construction materials causing damage to the tune of Rs. 75,000. Learned Chief Judicial Magistrate forwarded the complaint to the O/C, Tinsukia Police Station to register Tinsukia PS Case No. 134/97 under section 427/506/379/511, IPC. The case was investigated and thereafter police submitted Final Report No. 140/97 on 23.5.97. Notice was issued to the complainant wherein it was stated that the case has been registered and Final Report was submitted under section 427, IPC. As no objection was filed by the complainant, the Final Report was accepted by the Chief Judicial Magistrate, Tinsukia. Subsequently the petitioner filed an application to allow him to pursue the earlier complaint. However vide order dated 28.7.97 his prayer was rejected. 4. The complainant thereafter filed the present complaint on 5.10.97 and it was registered as Complaint Case No. 260/97. The learned trial Magistrate held the enquiry under section 202, Cr PC and thereafter vide the impugned order took cognizance of the offence under section 427, IPC and issued process. Hence the present application. 5. Mr. K. Agarwal, learned counsel for the petitioners has submitted that once a Final Report has been submitted by police after investigation and the same has been accepted after notice to the complainant and the complaint is dropped, subsequent fresh complaint is barred and the Magistrate has no jurisdiction to take cognizance of the offence. Learned counsel has placed reliance on a decision of the Apex Court in the case of HS Bains vs. Union Territory of Chandigarh reported in AIR 1980 SC 1883 wherein the Apex Court has considered the three options available before the trial Magistrate when final report is submitted by police. In this case there is no dispute at the Bar that the final report was accepted by the Court after issuing of notice to the complainant. In this case there is no dispute at the Bar that the final report was accepted by the Court after issuing of notice to the complainant. Now the question that arises for consideration is when Final Report is submitted and accepted by the Court, whether the petitioner is debarred from pursuing his relief. If seems to be a Naraji Petition and the Magistrate after holding the enquiry under section 202, Cr PC, found a prima facie case to proceed under section 427, IPC and accordingly issued the process. Criminal Procedure Code, 1973 does not contain any bar that once a Final report is accepted by the Court, the Magistrate cannot take cognizance of the offence or the subsequent trial of the case is illegal or irregular. There may be valid reason for not providing such bar as because police has been given absolute power to make investigation and submit either charge sheet or Final Report. The law is well settled that the Court has no power or jurisdiction to direct filing of charge sheet in appropriate cases. There may be cases in which after investigation, police finds that the offence alleged is a non-cognizable one only and as such no charge sheet can be submitted. In this case also, I find that police after investigation found case true under section 427, IPC but no offence report was submitted. It is therefore, held that acceptance of the Final Report is not a bar for filing fresh complaint on the same facts. However, in appropriate cases the Magistrate may before issue process hold an enquiry under section 202, Cr PC, to satisfy himself about the existence of any prima facie case. 6. Learned counsel further submits that some other litigation is still pending or might have been disposed of in the meantime and this being a case of minor offence under section 427, IPC, the complaint may be quashed as the matter is pending since 1997. Offence under section 427, IPC, is compoundable. So the parties will be at liberty to settle the matter outside the Court. Parties may take exercise in the Court below. Both the parties shall appear before the trial Court on 3.7.2001. 7. In the result, I find no merit in this revision petition and it is accordingly dismissed. Send down the record.