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2009 DIGILAW 1238 (JHR)

Rajendra Singh v. State of Jharkhand

2009-09-03

PRASHANT KUMAR

body2009
JUDGMENT : This is an application for quashing the order dated 08.06.2005 passed by Sri Shankar Maharaj, Judicial Magistrate, 1st Class, Dhanbad in Complaint Case No. 1943 of 2004 whereby and whereunder he took cognizance of the offence under section 323,386/34 of the IPC against the petitioners. The petitioners further prayed for quashing the entire criminal proceeding with respect to aforesaid case. 2. The records of this case reveals that a complaint petition has been filed by the complainant ( O.P. No. 2) in the court of learned C.J.M., Dhanbad, which was sent to Dhanbad Bank More Police Station for investigation under section 156 clause(3) of the Cr.P.C. Accordingly, Dhanbad Bank More P.S. Case No. 486 of 2004 instituted under section 323, 363, 386/34 of the IPC against the petitioners. It further appears that after investigation, police submitted a final form. It then appear that a protest petition filed by the complainant (O.P. No. 2). It further appears that vide order dated 6.12.2004, learned Chief Judicial Magistrate accepted the final form on coming to the conclusion that there is no sufficient materials to proceed against the accused. However, by the same order he ordered that the protest petition filed by the complainant (O.P. No. 2) be registered as a complaint case. Thereafter the complainant was examined on S.A. and the case was transferred in the file of learned court below for inquiry. The learned court below inquired into the matter and after considering the materials available on record, come to the conclusion that prima-facie offence under section 323, 386/34 of the IPC is made out; accordingly, he issued process against the accused-petitioners. 3. It is submitted by Sri. R.S. Mazumdar, learned counsel for the petitioner that once the final form has been accepted by the magistrate, it will be deemed that the proceeding against the accused persons in respect of the facts constituting the offence has been closed by the magistrate in a judicial proceeding. It is then submitted that unless the said order passed by the magistrate is set aside by any higher authority, the magistrate is not entitled to take cognizance on the basis of complaint petition or protest petition in respect of same facts constituting the offence as mentioned in the final form. It is then submitted that unless the said order passed by the magistrate is set aside by any higher authority, the magistrate is not entitled to take cognizance on the basis of complaint petition or protest petition in respect of same facts constituting the offence as mentioned in the final form. It is further submitted that the complaint petition has been filed maliciously because the complainant had filed a civil suit for specific performance of contract and therefore on the ground of malafide also the order of cognizance is liable to be set aside. 4. On the other hand, Sri. M.B. Lal learned counsel appearing for the O.P. No. 2 has submitted that the point raised by learned counsel for the petitioner has been set at rest by various decisions of Hon’ble the Supreme Court as well as Division Bench Judgment of unified Patna High Court. It is submitted that even after accepting the final report, the magistrate can still take cognizance of the offence upon a complaint and protest petition on the same and similar allegations. It is further submitted that the second point raised by the petitioner is also not factually correct. It is submitted that the complaint petition has been sent to police station for investigation on 3.8.2004 whereas the suit has been filed by the petitioners on 7.9.2004 i.e. after filing of the complaint petition. Thus, it cannot be said that the present complaint petition has been filed as a counter blast to the suit filed by the petitioners. Accordingly, it is submitted that there is no illegality and/or irregularities in the impugned order of the court below. 5. Having heard the submission, I have gone through the record of the case. The first point raised by the learned counsel for the petitioner has already been settled by a Division Bench of Patna High Court in Muni Lal Thakur and others Vs. Nawal Kishore Thakur and another reported in 1984 PLJR 774 . From perusal of the aforesaid judgment, I find that after considering the judgments of Hon’ble Supreme Court in Gopal Vijay Verma Vs. Bhuneshwar Prasad Singh and others reported in (1982) 3 SCC 510 their Lordships had concluded that a magistrate even after accepting the final report can still take cognizance of the offence upon a complaint or protest petition on same or similar allegation of fact. Bhuneshwar Prasad Singh and others reported in (1982) 3 SCC 510 their Lordships had concluded that a magistrate even after accepting the final report can still take cognizance of the offence upon a complaint or protest petition on same or similar allegation of fact. Thus, in view of aforesaid authoritative judgment of Hon’ble Patna High Court, I find no substance in the first contention raised on behalf of the accused-petitioner; therefore, the same is rejected. 6. So far the second point is concerned; the same is contrary to the facts of this case. From perusal of annexure-2 it appears that learned CJM sent the complaint petition to the Officer-in-Charge, Bank More Police Station on 03.08.2004 for investigation under section 156 clause(3) of Cr.P.C. From perusal of paragraph no. 12 of this criminal miscellaneous petition it appears that the petitioners filed the Title Suit (Title Suit No. 106 of 2004) on 07.09.2004 i.e. after the filing of the complaint petition. Under the said circumstance, it cannot be said that the complaint petition has been filed only with a view to harass the petitioners because they have filed the title suit against the complainant. Thus, the second point raised by the learned counsel for the petitioners is also misconceived, therefore cannot be accepted. 7. In view of the discussion made above, I find no merit in this application, the same is accordingly dismissed.