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2002 DIGILAW 224 (HP)

VIJAY CHANDLA v. PARVEEN CHANDLA

2002-08-13

M.R.VERMA

body2002
JUDGMENT M.R. Verma - This revision petition is directed against the order dated 29-9-1999 passed by the learned Additional Chief judicial Magistrate, Shimla in criminal complaint No. 144/2 of 1995/94. 2. The facts leading to the presentation of the present petition, in brief, are that the petitioner/ complainant (hereafter referred to as the petitioner1) filed a complaint against the respondents/ accused (hereafter referred to as the respondents) for the commission of offences punishable under section 498-A. 355. 506. 509 and 109 of the Indian Penal Code. After recording preliminary evidence, the learned trial Magistrate directed issuance, of process against the respondents under sections 498-A, 355, 506 and 509 read with section 109 of the Indian Penal Code. After the presence of the accused had been secured, the learned trial Magistrate vide order dated 27-2.1995 directed production of pre-charge evidence on 15.1.1996. However, on the date so fixed the Presiding Officer was on leave and thereafter the effective date for recording pre-charge evidence was fixed for 10-81999. However, no evidence was produced on the date so fixed and the case Was adjourned for 29.9.1999 for pre-charge evidence. Again, on 29.9.1999 neither the petitioner was present nor pre-charge evidence was produced/ summoned. The learned trial Magistrate, therefore, held that the petitioner had failed to lead pre-charge evidence despite opportunities and had been absenting repeatedly and thus there being no pre-charge evidence, the respondents were discharged. Being aggrieved, the petitioner has preferred the present revision petition. 3. I have heard the learned counsel for the parties and have also gone through the records. 4. The impugned order has been assailed by the learned counsel for the petitioner on the following grounds: (iv) That there was evidence on record on the basis of which it could be conveniently concluded that there was grounds to proceed against the respondents and frame a charge against them: and (v) In any case, one more opportunity ought to have been afforded to the petitioner to produce pre-charge evidence. Ground No. (I) 5. The only material what is on record is the preliminary evidence of the petitioner which is recorded by a Magistrate while taking cognizance on a complaint under section 200 of the criminal procedure code (hereafter referred to as the code). Ground No. (I) 5. The only material what is on record is the preliminary evidence of the petitioner which is recorded by a Magistrate while taking cognizance on a complaint under section 200 of the criminal procedure code (hereafter referred to as the code). This evidence, however, is recorded by a Magistrate in a complaint case as the case in hand is, only to form an opinion whether there is sufficient ground for summoning the accused in the case as required under section 204 of the case. When pursuant to the summons/warrants the accused appears or is brought before the court, the Magistrate is required to proceed with the complaint regarding commission of a warrant case in the manner as provided by sections 244 to 249 of the code. If the case is a summons case, the Magistrate is required to proceed with the matter in accordance with the provisions of sections 251 to 259 of the code. The process against the respondents in this case was issued for such offences wherein the punishment for imprisonment provided for is more than two years, therefore, the procedure to be adopted by the Magistrate was the one prescribed for trial of a warrant case instituted on a complaint and, thus, he was to proceed with the complaint in the manner as provided in sections 244 to 249 of the code. 6. Sections 244, 245 and 246 of the code are material for the purpose of determination of the question in hand. Section 244 provides that in a warrant case instituted otherwise than on a police report when the accused appears or is brought before the Court, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Section 245 provides that if upon taking such evidence the Magistrate considers that even if such evidence remains unrebutted, no case has been made out against the accused so as to warrant his conviction, the Magistrate shall record reasons and discharge the accused. Section 246 provides that if on the basis of such evidence the Magistrate is of the opinion that there are grounds for presuming that the accused has committed the offences(s) complained against and he is competent to try the same and pass adequate punishment, he shall frame a charge against the accused in writing. Section 246 provides that if on the basis of such evidence the Magistrate is of the opinion that there are grounds for presuming that the accused has committed the offences(s) complained against and he is competent to try the same and pass adequate punishment, he shall frame a charge against the accused in writing. On a combined reading of these sections it is clear that the trial Magistrate shall record the evidence of the complainant after the accused has appeared or is brought before him and it is on the basis of the evidence so recorded that he shall make up his mind whether the accused should be discharged or a charge should be framed against him. He cannot proceed to frame a charge on the basis of the evidence which might have been recorded under section 200 of the code. 7. In the case in hand, the petitioner was given opportunities to lead her pre-charge evidence, i.e. the evidence under section 244 of the code. However, she failed to do so. One of such dates, i.e. 29.9.1999, when the impugned order was passed, the petitioner was not present herself. No (Sic-nor) a request was made to the court for summoning the witnesses on any of the dates fixed for her pre-charge evidence. It may also be pointed out here that the complaint was instituted on 4.10.1994 and the respondents were ordered to be summoned vide order dated 25.11.1994 and the presence of all the accused could be secured on 27.12.1995 when the case was for the first time listed for pre-charge evidence. Thereafter the petitioner herself was not present on various dates which mainly led to a situation that the complaint could be fixed for pre-charge evidence only on 10/8/1999. Thus, the default of the petitioner in producing her pre-charge evidence and herself coming forward to made a statement led to a situation that despite sufficient opportunities having been granted, there was no pre-charge evidence on the record on the basis of which a charge could be framed against the respondents. The learned trial Magistrate, therefore, proceeded to discharge the respondents. The learned trial Magistrate, therefore, proceeded to discharge the respondents. If the petitioner did not care to prosecute the complaint and failed to lead pre-charge evidence to made out a case for framing a charge against the accused, the course left with the trial Magistrate was to discharge the accused and no fault can be found with such order. 8. In State of M.P. Vs. Punemchand and others. {1987 Cr. L.J. 1232}, while dealing with an identical situation, the Madhya Pradesh High Court held as under: "16. Justice has to be done to both the contending parties. In the instant case when the complainant did not appear on the several dates fixed for hearing of the case without any intimation and no steps were taken to produce the witnesses or request the Magistrate to grant further time for the purpose or to issue summons, it cannot be said that in exercising the judicial discretion in discharging the petitioner, the learned Magistrate has committed any error resulting in any miscarriage of justice....." 9. In Nabaghan Malla and others Vs. Brundaban malla. (1989 Cri.L.J. 381), Orissa High Court while dealing with the similar situation, held as under: "4. Section 245(2) of the code came up for interpretation before a Division Bench of this Court in 1996, 2 Orissa LR 493: (1987 Cri. L.J. 555), Agadhu Das V. Baban Parida. It is held that if in any particular case, the complainant fails to produce his witnesses for which he has assumed responsibility, and the case is dragged on due to such successive lapses on the part of the complainant, there is nothing inherently unreasonable for the Magistrate to come to the conclusion that the charge is groundless so as to discharge the accused. To hold the contrary would be to grant a premium to the complainant to prolong the harassment to the accused……But the opposite party himself committed default and did not even bother to take steps on 17.10.1985 till late hours. In such circumstance, there was no impediment oh the way of the learned judicial Magistrate to consider that the charge brought by opposite party against the petitioners was groundless. It was not possible on his part to act as the prosecutor and suo motu adjourn the case to another date to the utter detriment of the . In such circumstance, there was no impediment oh the way of the learned judicial Magistrate to consider that the charge brought by opposite party against the petitioners was groundless. It was not possible on his part to act as the prosecutor and suo motu adjourn the case to another date to the utter detriment of the . interest of the petitioner who stood accused with the sword of Democles hanging on their heads. Patently/the learned Sessions Judge did not examine the above aspects and did not notice the Division Bench case of this Court "and so he erroneously held that the teamed judicial Magistrate did5 not assign any reason although as a matter of fact specific reasons for discharging the petitioners have been assigned in the order of the learned judicial Magistrate: The impugned order being erroneous on facts and law cannot be supported." 10. In view of the settled position in law and the facts and circumstances of the case as already referred to here-in-above, the impugned order cannot be said to be erroneous or illegal or-having resulted in miscarriage of justice, therefore trails for no interference. 11. There is yet another aspect of the case. It is admitted case of the petitioner vide para 16 of the complaint that the matter was reported at police station Boileauganj also. Even from the preliminary evidence led by the petitioner it is clear that the commission of the alleged offences was reported at police station, Boileauganj where FIR. No. 207/94 dated 6.8.1994 was recorded. Since the police did not expedite the matter, therefore, the complaint was lodged before the Magistrate. The factum of lodging the F.I.R. for the same occurrence had been noticed even by the learned trial Magistrate vide Zimni order dated 25.11.1994. 12. No. 207/94 dated 6.8.1994 was recorded. Since the police did not expedite the matter, therefore, the complaint was lodged before the Magistrate. The factum of lodging the F.I.R. for the same occurrence had been noticed even by the learned trial Magistrate vide Zimni order dated 25.11.1994. 12. Section 210 of the code provides that when in a case instituted otherwise than on a police report it appears to the Magistrate during the course of enquiry or trial held by him that an investigation by the police is in progress in relation of the offence subject matter of the enquiry/ trial on the basis of the complaint; he should stay the proceedings on the basis of the complaint and call for a report from the police officer conducting the investigation on the basis of the F.I.R. and in the event of submission of a charge sheet the complaint and charge sheet should be tried together. However, after having come to know that an FI.R. about the occurrence had also been registered, the learned trial Magistrate proceeded with the complaint contrary to the said provisions. However, the illegality committed by the trial Magistrate now calls for no redressal because there is no dispute that! on the basis of the aforesaid F.I.R. the respondents were prosecuted; and were acquitted and finally a revision petition No. 67 of 2000 preferred by the petitioner against the said order of acquittal stood dismissed by a single Bench of this court on 5.4.2002. The said dismissal order has not been called in question by the petitioner in any manner, thus, the said order of acquittal on a charge for the commission of the offences, subject matter of this complaint, has become final. Therefore, the respondents, who have once been tried by a court of competent jurisdiction for the same offences which are subject matter of the complaint, cannot be tried again on the strength of the complaint in question in view of the provisions of section 300(10 of the code. Even on this count the petition deserves to be dismissed. Ground No. (ii) 13. In view of the findings given above and the fact that the petitioner herself has not been vigilant in prosecuting her complaint and failed to lead pre-charge evidence despite opportunities and in the facts and circumstances of the case, there was no reason for granting her one more opportunity to produce pre-charge evidence. Ground No. (ii) 13. In view of the findings given above and the fact that the petitioner herself has not been vigilant in prosecuting her complaint and failed to lead pre-charge evidence despite opportunities and in the facts and circumstances of the case, there was no reason for granting her one more opportunity to produce pre-charge evidence. 14. As a result, the present petition merits dismissal and is accordingly dismissed.