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2007 DIGILAW 902 (MP)

Halki Bai v. Rajendra Katikey

2007-08-16

RAKESH SAKSENA

body2007
ORDER 1. Applicant/complainant has filed this revision against the order dated 7th December 2005, passed by Additional Sessions Judge, Mandla, in Criminal Revision No. 119/05, setting aside the order dated 6.1.2004, passed by Judicial Magistrate First Class, Mandla, in unregistered Criminal Case of 2004 (Smt. Halki Bai v. Rajendra Katikey and others). 2. In short, the facts of the case are that complainant Halki Bai filed a complaint against respondents/accused No.1, 2, 3 and 4 under sections 294,323, 506/B, 420 and 500/34 IPC on the allegation that on 18.3.2003, at about 4:00 p.m. when she was cleaning her house, accused Pillu Gond obstructed her passage. When she objected to it, he abused her and told her that she was a witch (Dayan). He pushed her and also assaulted her. People of the neighbourhood came there and rescued her. It is also said that on 19.3.2003, when she went to police station to lodge a report, accused Rajendra, Sukhram and S. Kirkitta (Constables) did not hear her and demanded Rs. 500/- as illegal gratification. Since no action was taken by the police, she filed complaint before the Court of Judicial Magistrate First Class, Mandla. Learned Magistrate, by order dated 6.1.2004, passed the order under section 156 (3) of CrPC and directed police to investigate the case after registering the FIR and to file charge sheet in the Court. 3. Respondents/accused challenged the aforesaid order in revision before the Additional Sessions Judge. Learned Additional Sessions Judge, relying upon various precedents of High Court and Supreme Court set aside the order passed by the Magistrate holding that the Magistrate had no jurisdiction to direct the police in exercise of powers under section 156 (3) of CrPC to file charge sheet against the accused persons. At the most, Magistrate could have directed police for registration of the first information report, investigation of the case and to file report. In the present case, in compliance of the aforesaid order, passed by the Magistrate, a report was filed before the Court exonerating the accused persons. Therefore, learned Magistrate directed the Superintendent of Police to get the charge sheet filed. In the present case, in compliance of the aforesaid order, passed by the Magistrate, a report was filed before the Court exonerating the accused persons. Therefore, learned Magistrate directed the Superintendent of Police to get the charge sheet filed. Learned Additional Sessions Judge, by setting aside the order passed by Magistrate, directed that if report under section 173 CrPC was not filed, learned Magistrate had jurisdiction to take cognizance under section 190 CrPC on the basis of facts mentioned in the report submitted by the police if commission of offence was disclosed therein or to proceed for recording of the evidence of complainant under section 200 and 202 of the CrPC. 4. Aggrieved by the aforesaid order, passed by the learned Additional Sessions Judge, complainant/applicant Halki Bai has filed this revision on the ground that the order passed by the learned Magistrate was justified and police ought to have filed the charge sheet in compliance of the order passed by learned Magistrate under section 156 (3) of CrPC. 5. Taking into consideration the impugned order and the law laid down by apex Court in case of H.S. Bains v. The State (Union Territory of Chandigarh) [ 1980 CrLJ 1308 ] and Abhinandan Jha v. Dinesh Mishra [ 1968 CrLJ 97 ] it is apparent that if a Magistrate on receipt of complaint orders an investigation under section 156 (3) of CrPC and receives a report under section 173, (1) CrPC, he may do one of the three things (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence u/s. 190 (1) (b) on the basis of the police report and issue process; and (3) he may take cognizance of the offence u/S. 190 (1) (a). 6. In case, the police submits a report under section 169 of CrPC to the effect that on investigation there appeared no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to a Magistrate. if such offender is in custody, it may release him on executing a bond to appear if and when required before a Magistrate. 7. if such offender is in custody, it may release him on executing a bond to appear if and when required before a Magistrate. 7. It is clear that on receipt of report from the police that there is no ground to proceed against the accused, the Magistrate does not loose his jurisdiction to proceed against the accused by taking cognizance or to proceed to enquire into the matter by recording the evidence of complainant and his witnesses under sections 200 and 202 of CrPC. The order which the Magistrate can pass under section 156 (3) of the Code is that he may direct the police to register FIR and to investigate into the allegations made by complainant in the complaint and to submit its report. Police officer cannot be compelled to file the charge sheet, even though he does not find sufficient material against the accused to proceed, 8. In view of the above proposition of law, the impugned order passed by the learned Additional Sessions Judge cannot be held to suffer with any illegality or infirmity. I do not find any ground to interfere in the impugned order passed by the learned Additional Sessions Judge. As such, this revision fails and is accordingly dismissed.