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2002 DIGILAW 266 (PNJ)

Jarmal Singh v. State Of Punjab

2002-03-05

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. The petitioners seek quashing of the order dated 4.7.2000 passed by the Judicial Magistrate Ist Class, Ferozepur, copy of which is Annexure-P.2, whereby direction had been given to the S.H.O. of Police Station, Mamdot to present challan against the accused after the completing the investigation of the case and other formalities. 2. The incident had taken place on 10.4.1999 at 11.00 p.m. As per assertion of Sukhchain Singh, complainant, Jarmal Singh had borrowed some amount from him, with the promise to return the same during the next crop. He failed to keep the promise with the result that on 8.4.1999 the complainant went to the him and asked for return of the money. Upon this Jarmal Singh got infuriated and insulted the complainant. He further threatened him that he will take revenge for his asking for the return of the money. On the night of 10.4.1999 at about 11.00 p.m. two persons with muffled faces jumped into his house. Because of the noise created due to the barking of the dogs, the complainant woke up and asked as to who were outside. Thereupon 4-5 shots were fired towards him. Thereafter, he was forcibly taken to some yards towards the gate and they asked him to open the gate. Meanwhile family members of the complainant woke up. The complainant tried to escape from the clutches of those persons as a result of which the cloth with which those persons had covered their faces fell down. Then blows were given to the complainant and thereafter they left with their weapons in the jeep. The person sitting in the jeep could not be recognised in darkness by the complainant as he had also muffled his face. The number plate of the jeep could not be noted because it was covered with mud. A written report dated 11.4.1999 was made to the Police in Police Station, Mamdot. No action was taken on this report. Thereafter, the complainant filed Criminal Misc. No. 13803-M of 1999 in this Court for registration of FIR against the petitioners-accused. In the order dated 12.5.1999 passed in the above petition, a direction was given to the Police to take a decision on the representation made by the petitioner-complainant to the Senior Superintendent of Police, Ferozepur within three weeks from the production of copy of the order. No. 13803-M of 1999 in this Court for registration of FIR against the petitioners-accused. In the order dated 12.5.1999 passed in the above petition, a direction was given to the Police to take a decision on the representation made by the petitioner-complainant to the Senior Superintendent of Police, Ferozepur within three weeks from the production of copy of the order. In pursuance to the direction given, the present case under Sections 307, 452, 364 read with Section 34 I.P.C. was registered against the petitioners-accused. 3. During the investigation of the case, the Police found no substance in the allegations made by the complainant and his statement in this regard was also recorded. Thereafter, cancellation report was, submitted to the Senior Superintendent of Police, Ferozepur who had agreed with the same. The said report was forwarded to the Illaqa Magistrate for cancellation of the FIR. The Illaqa Magistrate issued notice to the complainant. The complainant, on his appearance before the Court, submitted that he had never stated to the police for submitting cancellation report and prayed that cancellation report be not accepted. Taking into account these circumstances, the learned Judicial Magistrate Ist Class, Ferozepur, as per his order dated 4.7.2000, directed the S.H.O. concerned to present the challan against the accused after completion of the investigation. It is this order which has been challenged in the present petition. 4. I have heard learned counsel representing the parties. 5. Learned counsel representing the petitioners-accused, while assailing the order dated 4.7.2000 of the learned Magistrate, vehemently urged before me that the learned Magistrate has transgressed his jurisdiction by directing the Police to submit the challan against the petitioners-accused because such a power does not flow from the provisions of Sections 169 to 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code) read conjointly. 6. The position of law in this regard stands well settled. 6. The position of law in this regard stands well settled. In Abhinandan Jha and others v. Dinesh Mishra, AIR 1968 S.C. 117, while taking notice of the provisions of Sections 173, 169, 156(3) and 190(1)(c) of the Code of Criminal Procedure, 1898 (hereinafter referred to as the `Old code), which provisions are pari materia with the provisions contained in Sections 173, 169, 156 and 190 of the Code it was observed that, there is no power expressly or impliedly conferred under the Old Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the said Code that there is no case made out for sending the accused for trial. 7. The position in this regard has been further clarified in H.S. Bains v. State, AIR 1980 S.C. 1883. It is manifest from the observations made in these cases that on receipt of the report by the Magistrate under Section 173(2)(i) of the Code, three options are open to the Magistrate, namely, (i) to accept the report and take cognizance of the offence and issue process; or (ii) may disagree with the report and drop the proceeding; or (iii) may direct further investigation under Section 156(3) of the Code. 8. In the present case, the learned Magistrate had passed the following order on 4.7.2000:- "Present : Complainant with his counsel Miss Surjit Kaur, Advocate. Complainant Sukhchain Singh son of Hazara Singh is present. His statement has been recorded on oath wherein he has stated that he never deposed for cancellation report has been filed. He has further made his statement on oath that he does not want this case to be cancelled and challan in this case be presented. Under these circumstances, as the complainant is not interested in cancellation of the case, the present cancellation report is declined. SHO of concerned police station is directed to present the challan against the accused after the completing the investigation and formalities. Paper be sent back. Announced in open Court. Dated : 4.7.2000 Sd/- Judicial Magistrate Ist Class" 9. It is manifest that the learned Magistrate though competent to order re- investigation of the case, could not have given direction to the Police to submit the challan. Paper be sent back. Announced in open Court. Dated : 4.7.2000 Sd/- Judicial Magistrate Ist Class" 9. It is manifest that the learned Magistrate though competent to order re- investigation of the case, could not have given direction to the Police to submit the challan. Such a direction would impinge upon the jurisdiction of the police to investigate the case and form opinion as to whether or not there is a case to send the accused for trial. It was observed in H.N. Rishbud and another v. State of Delhi, AIR 1955 S.C. 196 as under :- "The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in Section 168 that when a Subordinate Officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling Superior Officers to supervise or participate under Section 551." 10. In another case R. Sarala v. T.S. Velu and others, 2000(2) RCR(Crl.) 637, it was laid down that formation of the opinion whether there is or not a case to place the accused on trial is that of the officer incharge of the police station and none else and for that reason the investigating officer is not to take instructions regarding investigation of any particular case even from executive Government and cannot be allowed to be influenced by the opinion of the Public Prosecutor. 11. The above discussion leaves no manner of doubt that the learned Magistrate exceeded his jurisdiction when he directed the SHO of the concerned police station to submit the challan after completion of the investigation. Consequently the petition is allowed and the impugned Order is set aside.