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2003 DIGILAW 823 (PAT)

Gowardhan Boshak v. State Of Bihar

2003-08-07

INDU PRABHA SINGH

body2003
Judgment 1. This is an application under Section 482 of the Code of Criminal Procedure 1973 (in short the Code). It is directed against the order dated 16.5.2001 passed by Shri A.N. Jha, Judicial Magistrate, 1st Class, Katihar by which he had taken cognizance of the offences under various sections against the petitioners in Balrampur P.S. Case No. 83/98. 2. It appears that one Sanjeev Kumar Mishra (O.P. No. 2} had filed Complaint Case No. 1339 of 1998 on 26.9.1998 in the Court of the Chief Judicial Magistrate. Katihar. The said complaint petition was sent to Balrampur police station in the district of Katihar, on the basis of which Balrampur P.S. Case No. 83/98 was instituted. The police after completing the investigations submitted final report false and recommended for the prosecution of the complainant under Sections 182 and 211 of the Indian Penal Code. This final report is dated 14.6.1999. From Annexure-6 which is the order sheet of the Court of the Chief Judicial Magistrate. Katihar in this case, it appears that the final report was placed before him on 5.7.2000. However, since before this date a protest petition dated 18.11.1991 was pending before the learned Magistrate he directed that it may be treated to be a complaint petition and the informant may be examined on solemn affirmation on 10.8.2000. From the impugned order dated 16.5.2001 (Annexure 1) it appears that opposite party No. 2 was examined on solemn affirmation on 14.11.2000 and on 3.2.2001 P.W. Abdul Latif was also examined by the learned Magistrate. On the basis of their statemenls he took cognizance of the offences against the present petitioners under Sections 420 and 120-B of the Indian Penal Code. It is against this order that the present application has been filed. 3. On behalf of the petitioners it has been submitted that they are innocent and have been falsely implicated in the case with an ulterior motive. The police after investigations had also found them innocent and had concluded that the case instituted against them was false. The learned Chief Judicial Magistrate, Katihar too had accepted the final report submitted by the police. Under this circumstance it was not open to the learned Magistrate to proceed to examine opposite party No. 2 on solemn affirmation on the strength of his protest petition dated 18.11.1998 and to take cognizance of the offence. The learned Chief Judicial Magistrate, Katihar too had accepted the final report submitted by the police. Under this circumstance it was not open to the learned Magistrate to proceed to examine opposite party No. 2 on solemn affirmation on the strength of his protest petition dated 18.11.1998 and to take cognizance of the offence. It has further been contended that petitioner No. 2, Sitesh Kumar Mallick who was the Principal Incharge of the School, by his letter dated 21.1.1998, had requested the Officer Incharge, Telta police station to lodge an FIR against opposite party No. 2 and his father. Accordingly Balrampur P.S. Case No. 6/98 was instituted against them and this case is still pending. It has further been alleged thai even earlier the opposite party No. 2 had filed a false complaint case bearing Complaint Case No. 801/98 against petitioner Nos. 1 and 2 regarding the same issue. The said case was ordered to proceed only against two other accused (not the present petitioners) as will appear from Annexure 15. From the aforesaid it would appear that the petitioners have been unnecessarily dragged in the present case which has been filed with mala fide intention and ulterior motive to settle old enmity. It was, accordingly, prayed that the order taking cognizance of the offence against the present petitioners, as contained in Annexure 1 and their criminal prosecution be quashed. 4. The parties have been heard at length in the matter. It appears that Complaint Case No. 1339 of 1998 was filed by opposite party No. 2 on 26.9.1998 against the present petitioners. It further appears that this complaint petition was sent to the police on the basis of which Balrampur P.S. Case No. 83/98 was instituted. There is nothing on record to show that on filing of this complaint petition the complainant (opposite party No. 2) was examined on solemn affirmation. Annexure 6 is the order sheet of Balrampur P.S. Case No. 83/98. It does not show that the complainant was examined on solemn affirmation by the Magistrate. On the other hand the record shows that a final report false was submitted by the police on 14.6.1999. Annexure 6 is the order sheet of Balrampur P.S. Case No. 83/98. It does not show that the complainant was examined on solemn affirmation by the Magistrate. On the other hand the record shows that a final report false was submitted by the police on 14.6.1999. It further appears that even before the submission of the final report a protest petition dated 18.11.1998 (which has been numbered as C.A. No. 1221 of 2000) was filed by the complainant against the investigation done by the police alleging therein that the accused persons had gained over the officer incharge of the police station. This protest petition was treated to be the complaint petition as will appear from the order sheet dated 5.7.2000 (Annexure 6). The learned Magistrate had ordered that this protest petition may be treated to be a complaint petition and 10.8.2000 was the date fixed for examination of the complainant on solemn affirmation. The impugned order dated 16.5.2001 shows that it was on 14.11.2000 that the complainant was examined on solemn affirmation with respect to the allegations made in the protest petition and another witness Abdul Latif was examined on 3.2.2001. It was after this that the learned Magistrate had proceeded to take cognizance of the offence and it is this order that has been challenged in the present application. 5. Learned counsel appearing on behalf of the parties have tried to State the law with respect to the protest petition. On behalf of the petitioners it has been submitted that since by the order dated 5.7.2000 (Annexure 6) the final report submitted by the police was accepted, the law did not permit the learned Magistrate to treat the protest petition as a complaint petition and to proceed to examine the complainant on solemn affirmation on 14.11.2000. In other words it was the submission of the learned counsel for the petitioner that once the police had submitted final report false that was the end of the matter and the Magistrate was left with no alternative but to accept the same and not to proceed against the present petitioners. 6. On behalf of the opposite party this submission made on behalf of the petitioners has been challenged. 6. On behalf of the opposite party this submission made on behalf of the petitioners has been challenged. It has been submitted that under law upon receiving a report under Section 173 of the Code a Magistrate has got full jurisdiction to differ with the conclusion of the police and to direct the accused not named in the police report or not sent up for trial to be also put on trial. It has further been submitted that the law on this point is quite clear and even on the receipt of a final report (so called) the Magistrate has authority under law to take cognizance of the offence and to issue process if the materials collected during the investigation reveal the commission of an offence. In other words it has been submitted that the Magistrate is the final arbitrator of the matter and it is open to him to examine and even to differ with the conclusions arrived at by the police. In support of this contention reliance has been placed on the Special Bench decision of this Court in the case of Kuli Singh and others v. The State of Bihar and others, AIR 1978 Pat 298 (SB). Thus in view of this decision it cannot be said that the Magistrate is helpless in the matter and is bound to accept the conclusions arrived at by the police as mentioned in the final report submitted under Section 173 of the Code. 7. It may be mentioned here that the final report was submitted by the police on 14.6.1999 whereas a protest petition was already filed on behalf of the complainant on 18.11.1998. This will show that on the date on which the final report was submitted by the police a protest petition was already on record. It may be stated here that a "protest petition" has nowhere been defined in the Code but has been accepted to be a document of consequence in various decisions of the Courts. In this connection a reference may be made to the case of Sarju Ram v. Harihar Ram Tewary and others, 1970 Cr LJ 1117. In this case also final report false was submitted by the police and on the same date a protest petition was filed. The learned S.D.J.M. accepted the final form and discharged the accused. The revision was filed against this order. In this case also final report false was submitted by the police and on the same date a protest petition was filed. The learned S.D.J.M. accepted the final form and discharged the accused. The revision was filed against this order. It was held that when already there was a protest petition on record it should have been treated to be a complaint petition and the informant/complainant should have been examined on solemn affirmation. This is a single Bench decision by N.I. Untwalia, J. (as he then was). Even before this in the case of Rameshwar Prasad v. Bhatu Mahton and others, AIR 1958 Pat 11 . it has been held that a protest petition can be classed as a complaint petition only when there is accusation against some person with a prayer to take action as upon the complaint petition under Sections 202 to 204 of the Code. This view also finds support from a decision of the Hon ble Supreme Court in the case of Bhimappa Bassappa Bhu Sannavar v. Laxman Shivarayappa Samagouda and others, AIR 1970 SC 1153 . This matter was placed before me for consideration in the case of Rinku Mishra v. The State of Bihar and others, 2001 (1) PLJR 420 : 2000 (3) East Cr C 1965 (SC), in which I had tried to spell out the true scope of a protest petition. 8. In the present case the protest petition dated 18.11.1998 (Annexure 4) was already pending from before the date on which the police had submitted final report false on 14.6.1999. Under this circumstance the learned Magistrate before whom the case was pending had authority under law not to accept or not to accept the final report false submitted by the police and to treat the protest petition as a complaint petition and to further proceed to examine the informant/complainant on solemn affirmation as has happened in the present ease. It may be stated here that the matter would have been different if on filing the complaint petition No. 1339/98 before the learned Chief Judicial Magistrate the complainant would have been examined on solemn affirmation. In the present case this has not been done. On the other hand on the receipt of this complaint petition the learned Magistrate had send it to Balrampur police station where it was registered as Balrampur P.S. Case No. 83/98. In the present case this has not been done. On the other hand on the receipt of this complaint petition the learned Magistrate had send it to Balrampur police station where it was registered as Balrampur P.S. Case No. 83/98. It is well settled that if on the receipt of the complaint petition the complainant is examined on solemn affirmation it would amount to taking of cognizance and thereafter if the case is sent to the police for investigation and the police submits the charge-sheet it will not be treated to be a police case; on the other hand it will be treated to be a complaint case is has been held repeatedly by different courts. It is sufficient in this connection to mention a decision by the Hon ble Supreme Court in the case of Jamuna Singh and others v. Bhadai Shah, AIR 1964 SC 1541 . 9. From the detailed discussions made above it becomes clear that there is no illegality in the impugned order which does not call for any interference by this Court. However, before concluding I will briefly refer to another question that has been raised in the course of argument on behalf of the petitioners. It has been contended that on the basis of a report prepared by petitioner No. 1, petitioner No. 2 wrote a letter bearing No. 1 dated 21.1.1998 to the Officer Incharge police station on the basis of which Balrampur P.S. Case No. 6/98 was instituted under various sections against opposite party No. 2 and his father. On behalf of the petitioners it has been submitted that since this case is still pending they can not be prosecuted for any offence as mentioned in Annexure 3 which is the complaint petition filed on behalf of the opposite party No. 2. In paragraph 7 of the complaint petition (Annexure 3) it has been alleged that on the basis of false report of petitioner No. 1 a false case has been instituted against opposite party No. 2 and his father. However, pendency of any such case will not mean that a case instituted against the petitioners will not continue. They may or may not be classed as case and counter case and it would be for the courts to find out which version is correct. However, pendency of any such case will not mean that a case instituted against the petitioners will not continue. They may or may not be classed as case and counter case and it would be for the courts to find out which version is correct. It has further been contended that the complainant (Opposite party No. 2) had filed a false case against the present petitioners (Complaint Case No. 801/98) in which the learned Magistrate had ordered that their names be dropped and the case will proceed only against the other two coaccused as will appear from Annexure 15. These two cases do not appear to be identical and some of the accused in this case are different. The matter is still sub-judicc and it appears that it is still pending before a Judicial Magistrate. The pendency of any such case however, does not mean that the present case against the petitioners will not continue as each case has to be decided on its own respective merit. 10. Before concluding, however, I would like to refer to the decision in the case of Fr. Francis Mattathilani v. State of Bihar, 2000 (1) East Cr C 565 (Pat) ; 2000 (2) PLJR 226 , on which reliance has been placed on behalf of the petitioners. The facts of this case are, however, entirely different. There the matter in dispute wast already adjudicated by the Civil Court and earlier on similar allegations the petitioners were acquitted. It was, accordingly, held that the subsequent complaint is mala fide and frivolous. This decision, however, will not apply to the facts of the present case since they are entirely different. 11. From the detailed discussions made above it becomes perfectly clear that there is no merit in this application. It is, accordingly, dismissed.