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2010 DIGILAW 485 (MP)

Anantram Soni v. Jyoti Soni

2010-04-27

U.C.MAHESHWARI

body2010
JUDGMENT : The applicant - accused has directed this petition under section 482 of Criminal Procedure Code being aggrieved by the Order dated 12-1-2010 passed by IIIrd Additional Sessions Judge, (Fast Track Court), Katni in Criminal Revision No. 113/09 dismissing his revision by affirming the order dated 27-9-2009 passed by the Judicial Magistrate 1st Class, Katni in Criminal Complaint Case No. 106/06 taking cognizance against the applicant for the offence under section 498-A of Indian Penal Code. 2. The facts giving rise to this petition in short are that the respondent herein filed a private complaint against the applicant and other members of his family in the trial Court for the offence under sections 498-A, 294, 506-B and 323 of Indian Penal Code and 3/4 of Dowry Prohibition Act on dated 30-11-2006, such Court, vide order dated 30-11-2006 with respect of the facts stated in the complaint requisitioned an inquiry report through P. S. Katni. Subsequently on 11-7-2007 recorded the statements of the respondent-complainant under section 200 of Criminal Procedure Code and on dated 21-8-2007 and 21-10-2008 the statements of her witnesses under section 202 of Criminal Procedure Code. Thereafter in view of such statements, vide order dated 29-7-2009 took the cognizance only against the applicant for the offence under section 498-A of Indian Penal Code. Pursuant to that the applicant was summoned and on his appearance he was released on bail, vide order dated 3-8-2009. Subsequent to that the applicant challenged the aforesaid order dated 29-7-2009, taking the cognizance of the offence against him before the subordinate revisional Court. After extending the opportunity of hearing to the parties, on consideration by affirming the order of the trial Court such revision was dismissed by the impugned order, on which the applicant has come to this Court with this petition. 3. Shri R. K. Nanhoriya, learned appearing counsel of the applicant after taking me through proceeding of the trial Court said that at the initial stage without compliance the provision of sections 200 and 202 of Criminal Procedure Code, the trial Court called the inquiry report from the Police Station for which there is no provision under the Criminal Procedure Code. Shri R. K. Nanhoriya, learned appearing counsel of the applicant after taking me through proceeding of the trial Court said that at the initial stage without compliance the provision of sections 200 and 202 of Criminal Procedure Code, the trial Court called the inquiry report from the Police Station for which there is no provision under the Criminal Procedure Code. In the lack of any such provision if the complaint was entertained by the trial Court and such enquiry report was called from the Police Station, then the procedure adopted by the trial Court was ab initio void and in such premises at any subsequent stage the trial Court did not have any authority to proceed with the matter in accordance with the provision of sections 200 and 202 of Criminal Procedure Code. In continuation he said if the complaint was entertained contrary to the provision of Criminal Procedure Code, then its every subsequent proceeding being ab initio void is not sustainable and prayed for quashment of the entire proceeding and the trial of the aforesaid criminal case by admitting and allowing this petition. He also placed his reliance on the decision of Apex Court in the matter of Mohd. Yousuf vs. Afaq Jahan (Smt.) and another, reported in (2006) 1 SCC 627 and of this Court, in the matter of Dr. Ghanshyam Asrani and others vs. The State of M. P. and another, vide order dated 28-2-2008 in M.Cr.C. No. 10343/07. 4. Having heard the counsel after perusing the entire order sheet of the trial Court along with the impugned order of the Revisional Court and other papers placed on record, I am of the considered view that Revisional Court has not committed any error in affirming the order of the trial Court taking cognizance for the offence under section 498-A of the Indian Penal Code against the applicant. The order of the trial Court dated 29-7-2009 has been passed after taking into consideration the statement of the respondent-prosecutrix recorded under section 200 of Criminal Procedure Code and also the statements of her witnesses namely Munni Soni and Mathura Prasad recorded under section 202 of Criminal Procedure Code. In such premises, the order passed by the trial Court was to be within jurisdiction vested in such Court and the same could not have interfered under the revisional jurisdiction by the Revisional Court. In such premises, the order passed by the trial Court was to be within jurisdiction vested in such Court and the same could not have interfered under the revisional jurisdiction by the Revisional Court. It is settled proposition of law that where there the ingredients of the alleged offence are established on the basis of the statements recorded under section 200 and 202 of Criminal Procedure Code, then the Judicial Magistrate is duty bound to take cognizance of such offence against the person concerned. In such premises, it is held that the Revisional Court has not committed any error in affirming the order of the trial Court. 5. True it is that at the initial stage of the trial Court instead to proceed under sections 200 and 202 of Criminal Procedure Code called the enquiry report from the Police Station but subsequent to that in the absence of such enquiry report proceeded with case under sections 200 and 202 of Criminal Procedure Code, It is apparent on record that at any stage of the aforesaid complaint the trial Court has not directed to Police either to register the offence or holding the investigation. Mere calling the enquiry report could not be treated to be a direction to register the offence or to hold the investigation of the offence. In any case the trial Court was within the jurisdiction to inquire the matter under sections 200 and 202 of Criminal Procedure Code and in such premises, the trial Court has not committed any error in entertaining the complaint and in proceeding under sections 200 and 202 of Criminal Procedure Code. 6. The aforesaid Mohd. Yousuf case (supra), cited by the applicant's counsel was decided taking into consideration the various provisions of the Criminal Procedure Code relating to the information of offences to the Police, their power to investigate and regarding Police report defined under section 173 of the Code. The provision of section 156 of Criminal Procedure Code was dealt with in such case. According to cited case under section 156(3) of the Criminal Procedure Code, Judicial Magistrate can order to the Police for investigation of the case and if such investigation is directed then he shall not examine the complainant on oath because the cognizance of offence is not being taken by him. According to cited case under section 156(3) of the Criminal Procedure Code, Judicial Magistrate can order to the Police for investigation of the case and if such investigation is directed then he shall not examine the complainant on oath because the cognizance of offence is not being taken by him. While in the case at hand it is apparent that no such direction for investigation was given by the Magistrate to the Police. It is apparent on record that in spite of receiving the copy of complainant from the Court of Magistrate no offence was registered by the Police. In such a situation such cited case is not helping to the applicant. It is made clear that this Court does not have any dispute with respect of the principle laid down in such case. But in the available set of facts the same is not applicable. Even otherwise in view of the principle of the aforesaid cited case the Magistrate has not committed any error in proceeding with the matter and taking over the cognizance on the basis of statements recorded under section 200 and 202 of Criminal Procedure Code. 7. So far the case of Dr. Ghanshyam Asrani (supra) is concerned, in that case after filing the complaint at the initial stage the enquiry report was called by the Magistrate from the SHO of Police Station and considering such circumstance in the lack of any provision in that regard by holding such order illegal and is not sustainable, the same was set aside and the Magistrate was extended a liberty to proceed with the complaint in accordance with law. In the present matter the Magistrate has already proceeded in accordance with the law provided under section 200 and 202 of Criminal Procedure Code. Hence such case law is also not helping to the applicant. 8. I would like to mention here that in any case if at the initial stage on filing the complaint by adopting some wrong procedure if the enquiry report regarding facts of the complaint was requisitioned by the Judicial Magistrate from the Police Station, then it could not be deemed that any direction either for registration of the offence or for holding the investigation was given to the Police. In such a situation at subsequent stage by adopting correct procedure of section 200 and 202 of Criminal Procedure Code if the Magistrate proceeded with the case and took the cognizance of the offence, then such order of the Magistrate could not be said to be faulty or contrary to the settled legal proposition. 9. Except the aforesaid question, no other question was raised or argued before me by the applicant's counsel. 10. In view of the aforesaid, I have not found any circumstance in the impugned order required any interference under the inherent powers of this Court, enumerated under section 482 of Criminal Procedure Code. Resultantly, the petition being devoid of any merits is hereby dismissed at the stage of motion hearing. Petition dismissed.