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2006 DIGILAW 663 (KAR)

D. A. PANDURANGA SHET v. SAGAR TOWN POLICE

2006-08-16

K.RAMANNA

body2006
RAMANNA, J. ( 1 ) TIME prayed for by the learned counsel for the Respondent no. 2 is refused, on the ground that this Court has already heard the arguments of learned counsel for the petitioners on the last date of hearing, so also the learned High Court Government Pleader for respondent No. 1. ( 2 ) THIS revision petition is filed by the petitioners 1 to 4 to set aside the order passed by the Additional Sessions Judge, Shimoga dated 19/3/2003 in Crl. R. P. 4/2002 reversing the order of discharge dated 16/10/2001 passed by the Additional Civil Judge (Jr. Dn.) and j. M. F. C. Sagar in C. C. No. 270/2000. ( 3 ) ASSAILING the said order, the revision petitioners 1 to 4 have come up with this revision petition mainly on the ground that the sessions Judge has failed to take note of the complaint lodged by smt. Vinoda as barred by limitation. As such the complaint was filed after a lapse of six years of marriage. So also the learned Session judge failed to take note that petitioners-2 and 3 are aged persons and complainant herself has deserted the petitioners with an intention to harass them. Even though Respondent No. 2 has not made out any prima facie case against the revision petitioners, she filed a false complaint after a lapse of six years, which amounts to abuse of process of law and the learned Sessions Judge has failed to take note of this fact and reversed the order of discharge passed by the trial Court which is illegal. Even though the complaint filed for the offences punishable under Secs. 306,489-A, 323,506 r/w Sec. 34 of Indian penal Code and Secs. 3 and 4 of D. P. Act, charge sheet came to be filed by the investigating agency for the offences punishable under sec. 498-A and Secs. 3 and 4 of D. P. Act. The complaint filed by respondent No. 2 is not maintainable. Hence this revision petition. 306,489-A, 323,506 r/w Sec. 34 of Indian penal Code and Secs. 3 and 4 of D. P. Act, charge sheet came to be filed by the investigating agency for the offences punishable under sec. 498-A and Secs. 3 and 4 of D. P. Act. The complaint filed by respondent No. 2 is not maintainable. Hence this revision petition. ( 4 ) HEARD the arguments of Sri C. V. Nagesh, learned counsel for the petitioners and Sri A. V. Ramakrishna, learned High Court government Pleader for the respondent-1 and no arguments was put forth by Respondent No. 2 ( 5 ) THE case of the Respondent No. 2 is that she filed a private complaint before the Additional Civil Judge, and J. M. F. C. , Sagar against the revision petitioners for the offences punishable under secs. 306,498 (A), 323, 506 r/w Sec. 34 of Indian Penal Code and sec. 38 of D. P. Act. The trial Court has referred the matter to the asp, Sagar for investigation and directed him to submit the report. After investigation charge sheet came to be filed against the revision petitioners only for the offence punishable under Sec. 498-A of Indian penal Code and under Sec. 3 and 4 of the D. P. Act for which the trial court registered the case in C. C. No. 270/2000. ( 6 ) DURING the course of arguments, learned counsel for the revision petitioners submitted that under Sec. 156 (3) of Cr. P. C. the magistrate has no power to refer the matter other than to jurisdictional police station. Therefore, in the instant case the private complaint filed by Respondent No. 2 under Sec. 200 for the aforesaid offence before the trial Court is, either to take cognizance of the offence and record the statement and then proceed with the case or refer the matter to the jurisdictional police. So in the instant case referring the matter to the jurisdictional police i. e. , ASP who is a higher officer, is not maintainable. Therefore, the trial Court was right in discharging the revision petitioners. But on the other hand the learned Sessions Judge failing to consider the provisions of Sec. 156 (3) of Cr. P. C. referred the matter to the jurisdictional police. It is also submitted that the state has challenged the said order of discharge passed by the trial court before the Addl. Sessions Judge, Shimoga. But on the other hand the learned Sessions Judge failing to consider the provisions of Sec. 156 (3) of Cr. P. C. referred the matter to the jurisdictional police. It is also submitted that the state has challenged the said order of discharge passed by the trial court before the Addl. Sessions Judge, Shimoga. Instead of dismissing the revision petition filed under Sec. 397 Crp. C. the learned Sessions judge has mis-read the provisions of Sec. 156 (3) of Cr. P. C. and came to a wrong conclusion that there is a prima facie case to proceed against the accused persons and the matter has been remanded to the trial Court to proceed against the revision petitioners. ( 7 ) AS against this Sri A. V. Ramakrishna, learned High Court government Pleader submitted that the learned Sessions Judge was right in reversing the order of discharge made by the trial Court and also right in remanding the matter to proceed with the case. Therefore, he prays for dismissal of the revision petition. ( 8 ) THE 2nd respondent has not put forth his arguments. Hence, his arguments are closed. ( 9 ) I have carefully examined the materials placed on record and the provisions of Sec. 156 (3) of Cr. P. C. to appreciate the contentions put forth by both the sides. Sub. Sec. 3 of Sec. 156 Cr. P. C. reads: "any Magistrate empowered under Section 190 may order such an investigation as above-mentioned" section 156 (1) reads: "any officer in charge of a police station may, without the order of a Magistrate, investigate any cognisable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions. " ( 10 ) THEREFORE, the power of the Magistrate without referring the matter to the jurisdictional police station for investigation, which has been referred to the higher officers of the jurisdictional police, is liable to be quashed. Therefore, there is legal infirmity committed by the Magistrate referring the matter other than the jurisdictional police, where the complaint came to be filed. Act done by the Magistrate without jurisdiction amounts to illegality or abuse of process of law. Therefore, there is legal infirmity committed by the Magistrate referring the matter other than the jurisdictional police, where the complaint came to be filed. Act done by the Magistrate without jurisdiction amounts to illegality or abuse of process of law. So in support of this, the learned counsel for the revision petitioners has relied on several decisions of this Court and also Hon'ble Supreme court, holding that jurisdictional police means the police who is having jurisdiction over the area but not other than the police officer or police station. In this behalf a reference may be made to a decision rendered by the Apex Court in the case of CENTRAL BUREAU OF investigation THROUGH S. P. JAIPUR vs STATE OF rajasthan AND ANOTHER wherein it has been held that: "held: What is contained in Sub-Section (3)of Section 156, is the power to order the investigation referred to in sub-Section (1), because the words "order such an investigation as above-mentioned" in sub-section (3) are unmistakably clear as referring to the other subsection. Thus the power is to order an "officer in charge of a police station " to conduct investigation. " It has further held that: "this means, any other police officer, who is superior in rank to an officer in charge of a police station, can exercise the same powers of the officer in charge of a police station and when he so exercises the power he would do it in his capacity as officer in charge of the police station. But when a Magistrate orders investigation under section 156 (3), he can only direct an officer in charge of a police station to conduct such investigation and not a superior police officer, though such officer can exercise such powers by virtue of Section 36 of the Code. Nonetheless when such an order is passed, any police officer, superior in rank of such officer, can as well exercise the power to conduct investigation, and all such investigation would then be deemed to be the investigation conducted by the officer in charge of a police station " . ( 11 ) IN another case the Hon'ble Supreme Court in the case of t. T. ANTONY ETC. ( 11 ) IN another case the Hon'ble Supreme Court in the case of t. T. ANTONY ETC. , vs STATE OF KERALA AND OTHERS and also unreported decision of this Court in the case of ANANT V. ALBAL vs STATE OFKARNATAKA in and also in the case of PUSHPARAJ vs SUBBANNA AND OTHERS, wherein in para 5 it has been held that: "the propriety of the Magistrate in referring the complaint for investigation to Commissioner of Police does not appear to be res Integra. But when a magistrate orders investigation under section 156 (3), he can only direct an officer in charge of a police station to conduct such investigation and not a superior police officer, though such officer can exercise such powers by virtue of Section 36 of the Code. " ( 12 ) IN the instant case though a private complaint is filed by 2nd respondent under Sec. 200 of the Cr. P. C. , the trial Court without referring the matter for investigation to the jurisdictional police, has erroneously referred the matter to the ASP. After investigation the asp filed charge sheet against the petitioners only for the offence punishable under Sec. 498 (A) of Indian Penal Code and under Secs. 3 and 4 of the D. P. Act. Therefore, learned Sessions Judge was right in reversing the order of discharge dated 16/10/2001 passed by the addl. Civil Judge (Jr. Dn.) and J. M. F. C. In view of the specific provisions of Sub-sec. (3) of Sec. 156 of Cr. p. C. , the order passed by the trial Court referring the matter to the ASP for investigation is contrary to the procedural law and also settled law. Therefore, the investigation done by ASP and filing of the charge sheet on the basis of investigation, is liable to be quashed. Consequently, the order passed by the learned sessions Judge remanding the matter to proceed with the case against the revision petitioners-accused is liable to be set aside and the magistrate shall start a fresh enquiry after receiving fresh complaint. Accordingly, the revision petition is disposed of.