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2003 DIGILAW 118 (JK)

Munish Arora v. Monika Arora

2003-05-01

B.L.BHAT

body2003
B.L. Bhat, J. 1. Munish Arora, Lalita Arora, Rohit Arora, Shikha Arora, Smt. Archana Gulati, and Suman Gulati who figure as accused in a criminal complaint titled as Mrs. Monika Arora v. Munish Arora and Ors. for offences under Section 498-A RPC, 403 and 406 RPC pending decision before the learned Chief Judicial Magistrate, Jammu have through the medium of the petition under Section 561-A Cr. P.C. sought indulgence of this Court for quashment of this criminal complaint and also order dated 27.10.2002 recorded therein by the learned Chief Judicial Magistrate, Jammu by virtue of which cognizance of the offence has been taken for the said offences and process came to be issued against the petitioners. 2. It appears that on 22.9.2001, the respondent namely Monika Arora came to lodge report before the Station House Officer, Police Station Women Cell at Jammu alleging therein that petitioner/accused after hatching a criminal conspiracy misrepresented that accused No. 1 is potent when in fact he is impotent induced her to marry accused respondent No. 1. That after marriage the petitioner/accused harassed her by administered her physical beating finally turned out her from their house after retaining her ornaments, clothes and other dowry items given to her by her parents at the time of marriage and also made an attempt to kill her. Pursuant to this report of the respondent a case for offence under Sections 420 and 498-A RPC came to be registered by the said police station under FIR No. 17 of 2001. That while this case was under investigation before the Police Women Cell Jammu, the respondent Monika Arora on 27.10.2002 came to file a criminal complaint on the same facts for offences punishable under Sections 498-A, 403 and 406 RPC before the learned Chief Judicial Magistrate Jammu alleging therein inter alia" that the complainant filed an FIR with Women Cell Police Station but the police without taking effective steps pressing upon the complainant to pardon and enter into amicable settlement". On presentation of this complaint, the learned Chief Judicial Magistrate, Jammu after recording statement of respondent/complainant and her witness Manmohan Singh produced by her came to take the cognizance of the offence under Sections 498-A, 403 and 406 RPC and came to issue process against the petitioners accused in terms of Section 204 of Cri. P.C. by virtue of the impugned order. 3. Heard learned counsel for the parties. P.C. by virtue of the impugned order. 3. Heard learned counsel for the parties. Section 205(e) of the Criminal Procedure Code (hereinafter referred to as the Code) deals with the procedure to be followed when there is a complaint case and a police investigation in respect of the same offence. For convenience sake, the Section is reproduced as under: "(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial which was stayed by him, in accordance with the provisions of this Code." 4. Upon the simple reading of this section it is clear that when a complaint with respect to an offence is presented before the Magistrate and such Magistrate is informed that with respect to this offence which is subject matter of the complaint and investigation is pending before the police he is required to stay the further proceedings in the complaint presented before him. If the police submitted a charge sheet i.e. to say its final report against any one or more of the accused person who are accused in the complaint case presented before him, the two cases shall be inquired and tried together i.e. to say the complaint case and the case arising out of the police report as if both the cases were instituted on police report. Having regard to this law on examination of the record of complaint case instituted on 27.10.2001 for offence under Sections 498-A, 403 and 406 RPC against the respondents before the trial court and the case instituted on a final report laid by police against respondent No. 1 for offence under Section 498-A RPC on 30.10.2001. it appears that in the complaint case the respondent had made a clear averment in the complaint that with respect to the offence which is the subject matter of the complaint she has lodged an FIR, therefore, the learned Chief Judicial Magistrate, Jammu before whom the complaint case was presented was required to stay the proceedings in the complaint case before ascertaining whether or not to proceed with the complaint case. But the learned Chief Judicial Magistrate without taking notice of this fact over stepped his jurisdiction in taking cognizance of the case and issued process against the petitioners in terms of Section 204 of the Code. This omission on the part of the Magistrate is definitely an irregularity if not illegality because it is not a case where he lacked inherent jurisdiction to take cognizance and issue process against the accused in complaint case. This error on the part of the Ld. Chief Judicial Magistrate, Jammu has not resulted into miscarriage of justice because the sub-section (1) of Section 205-E Cr. PC is directory in nature; therefore, it does not warrant interference by this Court. However, the learned Chief Judicial Magistrate is required to try both the cases, i.e. the complaint case and the case instituted on police report together as if both the cases were instituted on a police report. 5. Viewed thus, the petition is disposed of with, the direction to the trial court to try the case in question together in accordance with law treating both the cases instituted on police report after ensuring the furnishing of the copies of the statements of the complainant and her witness whose statement have been recorded under Section 200 Cr. P.C. in the case to the accused. The record of the case together with copy of this order be returned to the court below where the parties shall cause their appearance on 12.5.2003.