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2009 DIGILAW 1373 (PNJ)

Kanwaljit Singh v. State Of Punjab

2009-08-11

K.C.PURI

body2009
JudgmentJudgment K.C.Puri, J. 1. Kanwaljit Singh and others have filed this petition for quashing FIR No. 166 dated 29.11.2007 (Annexure P-3) lodged under Sections 406 and 498-A of the Indian Penal Code (in short - IPC) with Police Station Bikhiwind District Amritsar. 2. Succinctly, the facts as emanating from the prosecution case are that the complainant filed a complaint dated 30.7.2007 (Annexure P-l) in the Court of Judicial Magistrate, Patti District Tarn Taran. The learned Magistrate, after taking cognizance of the criminal complaint, sent the copy thereof to Station House Officer, Police Station Bhikhiwind to make an inquiry on or before 30.11.2007. Thereafter, instead of submitting the report to the Magistrate, the SHO got the case registered against the petitioners vide FIR No. 166 dated 29.11.2007 (Annexure P-3). It has been alleged that the instant FIR is totally violative to the provisions of law. Once the criminal complaint has been filed in the Court and the Court has taken the cognizance over the complaint and gave directions to the police to hold an inquiry and to submit the report to the learned Court so that Court can proceed further in view of the report submitted by the police or the Court may consider the report in accordance with law. It is further submitted that once the Court has taken the cognizance of the offence on the basis of criminal complaint, the FIR regarding same offence cannot be entertained. 3. It has been further alleged that even from the perusal of the complaint, no offence is made out. The Petitioner No. 1 is in the Army and respondent No. 2 used to live without informing petitioner No. 1 and when the protest is made she lodged this complaint with mala fide intention just to press upon the petitioners. 4. It has been further asserted that marriage has taken place in 2001 and it is alleged that petitioners Balbir Singh and Baljit Kaur are only mediators for arranging the marriage and they belong to the different villages. 5. On notice, respondents appeared and filed their separate replies. 6. 4. It has been further asserted that marriage has taken place in 2001 and it is alleged that petitioners Balbir Singh and Baljit Kaur are only mediators for arranging the marriage and they belong to the different villages. 5. On notice, respondents appeared and filed their separate replies. 6. Respondent No. 1 alleged that Station House Officer, Police Station, Bhikhiwid did not violate the provisions of law as earlier the inquiry was conducted by Station House Officer, Police Station Bhikhiwind and submitted report to the Senior Superintendent of Police, Tarn Taran and the Senior Superintendent of Police, ordered to register the case against the petitioners. So, in these circumstances, the police did not violate any provisions of law and register the case according to the facts and circumstances. Denying other averments, respondent No. 1 prayed for dismissal of the petition. Almost similar pleas have been taken by respondent No. 2 and who also ultimately prayed for dismissal of the petition. 7. I have heard learned counsel for the parties and have gone through the record carefully. 8. The main thrust of the counsel for the petitioners is that since the trial Court has taken cognizance of the complaint filed by complainant and has called for the report of the police and thereafter the registration of the case without submitting report under Section 202 Cr.P.C. to the concerned Magistrate, cannot be lodged. The Magistrate has the power to take cognizance only after the receipt of report of the police. 9. Complainant-Raj winder Kaur submitted complaint under Section 406, 498- A, 506 and 34 IPC against present petitioners. Learned Sub Divisional Judicial Magistrate directed the Station House Officer of Police Station Bhikhiwind to submit a report on or before 30.11.2007. However, FIR No. 166 dated 29.11.2007 was registered by police of police station Bhikhiwind under Section 202 Cr. P.C. Magistrate on receipt of the complaint of an offence, which is authorized to take cognizance or which has been made over to him under Section 192 Cr. P.C. may, if think fit, postpone issue of process against the accused and either inquired into the case himself or direct an investigation to be made by police or by such persons as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. P.C. may, if think fit, postpone issue of process against the accused and either inquired into the case himself or direct an investigation to be made by police or by such persons as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. In the present case, the police on investigation reached the conclusion that cognizable offence is made out against the petitioners and consequently, FIR mentioned above was registered against them. So, there is nothing wrong for learned Magistrate to take cognizance of the offence. Otherwise also, procedures are meant to provide justice and not to throw away a case mere on technicalities. The proceedings under Section 482 Cr. P.C. can only be initiated if from the allegations made in the complaint/FIR does not disclose any commission of the offence or the Complaint/FIR is mala fide. There is nothing in this context on the file to arrive at that conclusion. Otherwise, during the course of arguments, the counsel for the petitioners has challenged the FIR on the ground of technicalities mentioned above. Otherwise to deal with such a situation, Section 210 Cr.P.C. has been enacted by the Parliament, which lays down as under :- "210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence .:- (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 an 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. 10. So, the Magistrate has the power to deal with the complaint case and FIR case together by invoking Section 210 Cr. P.C. as referred to above. If both the complaint and FIR cases are taken together in that case also presumption. would be as if both the cases would be dealt with as the cases instituted on police report. On that account also the petitioners cannot derive any benefit. 11. In authority Karnail Singh v. State of Haryana, 2004(1) RCR (Criminal) 52, this Court has held while dealing with Sections 156, 200 and 190 Cr. P.C. that in a complaint case Magistrate can send the case to the police under Section 156(3) Cr. P.C. without recording preliminary evidence if Magistrate takes cognizance of complaint by recording preliminary evidence, he may still refer the complaint to the police under Section 202 Cr.P.C. 12. In the present case, the complaint under Sections 406, 498-A, 506 read with Section 34 IPC was filed. Learned Sub-Divisional Judicial Magistrate, Patti directed the SHO Police Station Bhikhiwind to submit the report on or before 30.11.2007. So, it cannot be said that the Magistrate has taken cognizance on the complaint. Investigating report was called. 13. Counsel for the petitioners has relied upon Suresh Chand Jain v. State of Madhya Pradesh and another, 2001(1) R.C.R.(Criminal) 335 : JT 2001 (2) SC 81. In the said authority, it has been held that in case Magistrate after receiving the complaint called for the report under Section 156(3) Cr. P.C, in that case it would not amount to take the cognizance of the offence. This authority never helps the case of the petitioners. In the said authority, it has been held that police can investigate the case only after registration of the case. So, in these circumstances, the argument advanced by the learned counsel for the petitioners that no cognizance can be taken by the Magistrate is without any substance. 14. This authority never helps the case of the petitioners. In the said authority, it has been held that police can investigate the case only after registration of the case. So, in these circumstances, the argument advanced by the learned counsel for the petitioners that no cognizance can be taken by the Magistrate is without any substance. 14. Learned counsel for the petitioners also relied upon authority in Jamuna Singh and others v. Bhadai Shah, AIR 1964 Supreme Court 1541, which is also distinguishable on the facts of the present case. In that case the complainant was examined on oath and thereafter Magistrate ordered the police to institute case and report in that case. The Honble Apex Court has held that cognizance shall be deemed to be taken on complaint and not on police report. According to the said authority, it is clear that no case for quashing is made out as at the most the trial Court can proceed considering the case as complaint case. However, on the facts of the present case, there is nothing on the file that complainant or his other witnesses have been examined so the above said authority is not helpful to the petitioners. 15. In view of the above discussion, petition is without any merit and the same stands dismissed.