Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 1031 (PNJ)

Shugan Singh v. State Of Haryana

2002-10-08

NIRMAL SINGH

body2002
Judgment Nirmal Singh, J. 1. The case of the prosecution is that on 22.2.2000, there were State Assembly Elections in Haryana. There was a polling booth in village Patti Kalyana. When Ram Kishan complainant was present near the society after having gone to booth No. 150, Pale Ram was attacked by Satta, Vikram, Bhupinder sons of Pawan, Sanjay, Vinod sons of Sugan and Sugan son of Mullah residents of Patti Kalyana. When the complainant Ram Kishan and Roshan tried to intervene, they were also beaten up by the aforesaid persons. On the basis of the said statement, FIR No. 53 dated 22.2.2000 under sections 148/149/323/324/325/307/506 IPC was registered. After investigation, accused were found innocent. Cancellation report was presented. Notice was issued to Ram Kishan. After hearing the complainant and perusing the police report, learned Magistrate sent the report to the Addl. Sessions Judge, Sonepat. The learned Addl. Sessions Judge, after hearing the complainant and the Public Prosecutor did not accept the cancellation report and directed the police to complete the investigation and to submit the challan against the accused persons within 45 days i.e. on or before 28.10.2002. 2. Aggrieved by the said order, present revision petition has been filed. 3. Mr. Ashit Malik, learned counsel for the petitioner submitted that learned Addl. Sessions Judge, Sonepat has erroneously passed the order dated 13.9.2002. He contended that the learned Addl. Sessions Judge has the power to direct further investigation but has no power to compel the police to present the challan. 4. On the other hand, Mr. K.S. Chauhan, learned DAG submitted that Court has the power to direct the police to put up the challan if it comes to the conclusion that police is helping the accused. 5. I have given my thoughtful consideration to the submissions made by learned counsel for the parties and perused the record. 6. In H.S. Bains v. The State (U.T. Chandigarh), AIR 1980 SC 1883, the Apex Court has held as under :- "6. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under section 200. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under section 203. If in his opinion there is sufficient ground for proceeding he may issue process under section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). On receing the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report, may without issuing process of dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under section 200 Cr.P.C. and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under sections 200, 203 and 204. Thus a Magistrate who on receipt of a complaint orders an investigation under section 156(3) and receives a police report under Section 173(1), may thereafter do one of three things :- (1) He may decide that there is no sufficient ground for proceeding further and drop action (2) he may take cognizance of the offence under section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report (3) he may take cognizance of the offence under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under section 200. If he adopts the third alternative, he may hold or direct an enquiry under section 202 if he thinks fit. Thereafter, he may dismiss the complaint or issue process, as the case may be. 7. xx xx xx xx 8. In Tula Ram v. Kishore Singh (AIR 1977 SC 2401) the Magistrate on receiving a complaint, ordered an investigation under section 156(3). The police submitted a report indicating that no case had been made out against the accused. The Court, however, recorded the statements of the complainant and the witnesses and issued process against the accused. It was contended that Magistrate acted without jurisdiction in taking cognizance of the case as if upon a complaint when the police had submitted a report that no case had been made out against the accused. This Court held that the Magistrate acted within his powers and observed that the complaint did not get exhausted as soon as the Magistrate ordered an investigation under section 156(3). We are, therefore, unable to agree with the submission of Shri Sibal that the Magistrate acted without jurisdiction in taking cognizance of the offence and issuing process to the accused notwithstanding the fact that the police report was to the effect that no case had been made out." 7. In view of the above judicial precedent, the learned Addl. We are, therefore, unable to agree with the submission of Shri Sibal that the Magistrate acted without jurisdiction in taking cognizance of the offence and issuing process to the accused notwithstanding the fact that the police report was to the effect that no case had been made out." 7. In view of the above judicial precedent, the learned Addl. Sessions Judge can direct for further holding the investigation as envisaged under section 173(8) Cr.P.C. but there is no provisions in the Code of Criminal Procedure compelling the investigating agency to put up the challan against an accused person. After investigation the accused may be found innocent by the police, but the court has the power to take cognizance of the offence under section 190(1)(b) Cr.P.C. on the basis of police report and to issue the process and the court itself can record further evidence. 8. For the reasons recorded above, the order of learned Additional Sessions Judge, Panipat dated 13.9.2002 directing the investigating agency to put up the challan against the accused within a period of 45 days i.e. on or before 28.10.2002 is set aside to that extent. This revision stands disposed of accordingly.