Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 1181 (MP)

Dharmendra Gaur v. Mukesh Shivhare

2012-11-19

ANIL SHARMA

body2012
ORDER 1. Respondent No.1/complainant is representing through his counsel Shri B.P.S. Chauhan, Advocate and copies of challan has been filed, therefore, case is heard finally. 2. Petitioner has filed this petition under section 482 of Cr.P.C. against the order dated 11.10.2012 passed by First Additional Sessions Judge, Jaura, M.P. in Criminal Revision No. 211/12 confirming the order dated 1.8.2012 taking congnizance for the offence punishable under sections 302 and 201 read with section 34 of IPC against the petitioner in Criminal Case No. 500/12 on private complaint filed by respondent No. 1 Mukesh Shivhare. 3. Learned counsel for the petitioner submitted that challan has been filed against the petitioner for the offence punishable under section 306/34 of IPC in Crime No. 374/11 of P.S. Jaura, district Morena, M.P. Respondent No. 1 has filed M.Cr.C. No. 3085/12 for framing charges for the offence punishable under section 302 of IPC challenging the order dated 23.1.2012 passed in S.T. No. 286/11 framing charges for the offence punishable under section 306 of IPC only. This Court vide order dated 2.5.2012 disposed of the petition with the direction to the petitioner that he is free to file an application under section 216 of Cr.P.C. which shall be filed by the Court below after affording opportunity of hearing of the parties concerned, as per law. In compliance of order, petitioner Mukesh Shivhare has filed an application under section 216 of Cr.P.C. copy of which has been filed as Annexure P/4. Copy of reply to the application has been filed as Annexure P/5. It is an admitted position that application filed by Mukesh Shivhare is still pending before the trial Court for consideration. But in the meanwhile, Mukesh Shivhare has filed complaint for the offence punishable under sections 302 and 201/34 of IPC mentioning the fact that Crime No. 374/11 has been registered against the accused and challan has been filed for the offence punishable under section 306/34 IPC. It is submitted by learned counsel for the petitioner that inspite of the fact that pendency of a Sessions trial has been mentioned, learned Magistrate has taken cognizance of the offence in same crime for which Session trial is pending before the Court of Additional Sessions Judge. 4. It is submitted by learned counsel for the petitioner that inspite of the fact that pendency of a Sessions trial has been mentioned, learned Magistrate has taken cognizance of the offence in same crime for which Session trial is pending before the Court of Additional Sessions Judge. 4. Learned counsel for the respondent/State has submitted that since challan has not been filed for the offence punishable under sections 302 and 201/34 of IPC, private complaint has been filed by respondent No.1Mukesh Shivhare but this fact has been suppressed in the complaint that application under section 216 of Cr.P.C. is pending before the trial Court for framing same charges for which private complaint has been filed by Mukesh Shivhare who has filed application under section 216 of Cr.P.C. before the learned Additional Sessions Judge. Such act of filing two different applications before two different Courts for similar relief is clearly misuse of process of law. 5. Learned counsel for the petitioner has cited judgment of Hon’ble Apex Court in the matter of Jili Singh vs. State of Uttar Prasesh and another (2012)3 SCC 383 in which it has been held that after commitment of case to Sessions Court, it is not open to Magistrate to exercise powers under section 204(1)(b) of Cr.P.C. and issue summouns to a person as accused. 6. Two other judgments have also been cited by the leaned counsel for the petitioner in the matter of Raj Kishore Prasad Vs. State of Bihar and another (1996)4 S.C.C. 495 and in the matter of Ranjit Singh Vs. State of Punjab (1998)7 S.C.C. 149 . All these citations relate to the cases where additional accused has been impleaded after committal of the case. 7. Learned counsel for the respondent No.1 has submitted that since Police has not filed challan for the offence punishable under sections 302 and 201/34 of IPC and cognizance for the same offence has not been taken by learned Judicial Magistrate, therefore, second complaint filed by the petitioner is maintainable. 7. Learned counsel for the respondent No.1 has submitted that since Police has not filed challan for the offence punishable under sections 302 and 201/34 of IPC and cognizance for the same offence has not been taken by learned Judicial Magistrate, therefore, second complaint filed by the petitioner is maintainable. He has further drawn attention towards the statement of witnesses and medical reports to the effect that victim was having injuries on his body and he was beaten by the accused but the petitioner after taking recourse to file application under section 216 of Cr.P.C. before the trial Court as per the directions given by this Court in M.Cr.No.3085/2012 vide order dated 2.5.2012 has misused the process of law by filing complaint under section 190 of Cr.P.C. knowing well that he has filed an application for framing of charges of same offence under sections 302 and 201/34 of IPC before the trial Court which was pending. It is also surprising that learned Additional Chief Judicial Magistrate has taken cognizance after considering the record of Sessions trial. Therefore, during pendency of application filed under section 216 of Cr.P.C. by the complainant Mukesh Shivhare, the order taking cognizance of offence punishable under sections 302 and 201/34 of IPC is not sustainable and both the Court below are not justified in passing the impugned orders. The learned Additional Chief Judicial Magistrate has failed to consider the fact that application framing charges for the offence punishable under sections 302 and 201/34 of IPC is pending before the trial Court and the said application has been filed vide directions given by this Court in M.Cr.C.No. 3085/2012 vide order dated 2.5.2012, therefore, the matter requires interference under inherent powers to prevent abuse of process of Courts below and to secure the ends of justice. Therefore, the order taking cognizance for the offence punishable under sections 302 and 201/34 of IPC dated 1.8.2012 passed by learned Additional Chief Judicial Magistrate, Jaura and order passed by the learned revisional Court confirming the order dated 1.8.2012 in Criminal Revision No. 211/12 dated 11.10.2012 are hereby quashed. 8. Therefore, the order taking cognizance for the offence punishable under sections 302 and 201/34 of IPC dated 1.8.2012 passed by learned Additional Chief Judicial Magistrate, Jaura and order passed by the learned revisional Court confirming the order dated 1.8.2012 in Criminal Revision No. 211/12 dated 11.10.2012 are hereby quashed. 8. Learned counsel for the respondent No.1 has submitted that the trial of both the cases may be ordered simultaneously so that evidence adduced by the complainant may be considered but since the complaint itself has been filed with ulterior motive of misues of process of law the order taking cognizance has been set-aside, therefore, simultaneous trial cannot be ordered. 9. Petition stands allowed and disposed of.