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2012 DIGILAW 1381 (RAJ)

Ratan Lal v. State of Raj.

2012-05-25

MAHESH CHANDRA SHARMA

body2012
Hon'ble SHARMA, J.—This criminal misc. petition has been filed under Section 482 Cr.P.C. against the orders dated 4.2.2008 and 10.4.2008 passed by Judicial Magistrate Sambhar Lake, District Jaipur. Vide order dated 4.2.2008 the Judicial Magistrate forwarded the complaint under Section 156(3) Cr.P.C. to the police for investigation and vide order dated 10.4.2008 dismissed the application dated 18.3.2008 moved by the petitioner for reviewing the order dated 4.2.2008 and for calling back the complaint from the police and to take cognizance of offence against the accused persons named in the complaint. 2. On 28.2.2003 the complainant petitioner Ratan Lal along with other complainant Rajendra Singh son of Gulab Singh filed a criminal complaint under Section 190 Cr.P.C. in the court of Judicial Magistrate Sambhar Lake against the accused persons namely Rajendra Singh, SHO Police Station Phulera and Mukesh Yadav, Constable, Police Station Phulera for offence under Sections 166. 219, 330, 323 and 341 IPC with regard to an incident taken place on 27.2.2003. After registration of complaint on 22.4.2003 the trial Court recorded the statements of the complainant and his witnesses under Section 200 and 202 Cr.P.C. i.e. PW.1 Dr. Mahesh Kumar Verma, PW.2 Ratan son of Pema Ram and PW.3 Rajendra son of Gulab and also recorded the statement of Shiv Ram son of Nand Lal as PW.4 on 20.6.2003. In his statement Dr. Mahesh Kumar Verma has stated that the petitioner has sustained grievous injuries and from the statement of the complainant and his witnesses prima facie the offence under Sections 166, 167, 219, 330, 323, 341 and 325 IPC is made out against the accused persons and there is sufficient evidence available on record to take cognizance of offence against the accused persons for above mentioned offences but the trial Court vide order dated 4.2.2008 sent the matter to the Deputy Superintendent of Police Sambhar Lake for investigation. The complainant on 18.3.2008 moved an application stating therein that vide order dated 4.2.2008 the trial Court has sent the matter to the Deputy Superintendent of Police Sambhar Lake for detailed investigation while the trial Court has already recorded the statements of the complainant and of his witnesses under Sections 200 and 202 Cr.P.C. The learned counsel for the complainant petitioner in support of his arguments cited the case of Bhushan Prakash @ Prasad vs. State and Others (2006(4) RLW 3415). 3. Mr. 3. Mr. Peeyush Kumar, Public Prosecutor appearing for the State has argued that the Magistrate has rightly sent the complaint to the police for further investigation and in sending the complaint he has not committed any error so as to call for interference by this Court under Section 482 Cr.P.C. 4. I have heard the learned counsel for the parties and also perused the order passed by the Judicial Magistrate after recording the statement of the complainant under Sections 20 and 202 Cr.P.C. sent the matter to the Deputy Superintendent of Police for further investigation. 5. The Apex Court in Ram Naresh Prasad vs. State of Jharkhand (2009) 11 SCC 299 : 2009(3) SCC (Cri) 1336 held that when the Police submitted a final report of the investigation of the case which in colloquial term is called "closure report", the Magistrate cannot direct the police to submit the charge-sheet. However, on the basis of the material in the charge-sheet, he may take cognizance or direct further investigation. It is true that even after the police report indicates that no case is made out against the accused, the Magistrate can ignore the same and can take cognizance on applying his mind independently to the case. But in that situation, he has two options: (i) he may not agree with the police report and direct an enquiry under Section 202 and after such enquiry take action under Section 203; (ii) he is also entitled to take cognizance under Section 190 Cr.P.C. at once if he disagrees with the adverse police report but even in this circumstance, he cannot straighaway direct submission of the charge-sheet by the police. 6. The Apex Court, in Vasanti Dubey vs. State of M.P. (2012) 2 SCC 731 , in paras 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34 held as under: 22. In the light of the aforesaid legal position, when we examined the merit of the instant matter, we noticed that the order dated 18.5.2004 passed earlier by the Special Judge straightway directing the police to submit charge-sheet was quashed by the learned single Judge of the High Court and liberty was left open to him either to take cognizance under Section 190(c) of the Cr.P.C. or direct the Lokayukta Police for further investigation. In spite of this order, the Special Judge did not pass an order taking cognizance which he could have done under Section 190(c) of the Cr.P.C. 23. However, the Special Judge chose to direct Office of the Lokayukta to enter into further investigation which after further investigation assigned reasons given out hereinbefore, stating that in view of the statement of the complainant that he had complained at the instance of a rival of the accused as also the fact that entire payment had already been made by the complainant prior to the lodgment of complaint, no case was made out against the complainant. In spite of this, if the Special Judge considered it legal and appropriate to proceed in the matter, he could have taken cognizance upon the complaint and could have proceeded further as per the provision under Section 200 of the Cr.P.C. by examining the complainant and if there were sufficient ground for proceeding, he could have issued process for attendance of the accused. However, such process could not have been issued, unless the magistrate found that the evidence led before him was contradictory or completely untrustworthy. Conversely, if he found from such evidence that sufficient ground was not there for proceeding i.e. no prima facie case against the accused was made out, he had to dismiss the complaint, since the complaint did not disclose the commission of any offence. But instead of taking any step either by issuing the process or dismissing the complaint at once, he could have taken immediate step as a third alternative to make an enquiry into the truth or falsehood of the complaint or for an investigation to be made by the police for ascertaining whether there was any prima facie evidence so as to justify the issue of process. 24. In short, on receipt of a complaint, the Magistrate is not bound to take cognizance but he can without taking cognizance direct investigation by the police under Section 156(3) of Cr.P.C. Once, however, he takes cognizance he must examine the complainant and his witnesses under Section 200. Thereafter, if he requires police investigation or judicial enquiry, he must proceed under Section 202. Thereafter, if he requires police investigation or judicial enquiry, he must proceed under Section 202. But in any case he cannot direct the Police to straightaway file charge-sheet which needs to be highlighted as this point is often missed by the Magistrates in spite of a series of decisions of this Court including the case of Abhinandan Jha (supra) and Ram Naresh Prasad (supra) referred to hereinbefore. 25. When the facts of the instant matter is further tested on the anvil of the aforesaid legal position, we find that the Special Judge instead of following the procedure enumerated in the Cr.P.C. appeared to insist on rejecting the closure report given by the Special Police Establishment, Lokayukta Office and in the process consistently committed error of law and jurisdiction not only once, but twice. 26. On the first occasion when the order of the Special Judge was quashed and set aside by the High Court granting liberty to the Special Judge either to take cognizance under Section 190(c) or order for further investigation as he had committed an error of jurisdiction by directing the police to straightway submit the charge-sheet against the accused-petitioner, the Special Judge did not consider it appropriate to take cognizance but ordered for further investigation by Lokayukta Police and when the matter was reinvestigated by the Special Police Establishment of the Lokayukta Office, the Special Judge in spite of the finding of the investigating agency holding that no further material to proceed in the matter was found, refused to accept the closure report and this time it further realized that it could not proceed in the matter as there was no sanction for prosecution, which the Special Judge obviously noticed since he was not in a position to take cognizance directly under Sections 7, 13(1)(d) of the Prevention of Corruption Act in absence of sanction which was a statutory requirement. In spite of this, he refused to accept closure report but recorded a direction to obtain sanction for prosecution of the appellant and thereafter ordered for reinvestigation of the complaint for the second time creating a peculiar and anomalous situation which is not in consonance with the provision of the Code of Criminal Procedure enumerated under the Chapter relating to conditions requisite for initiation of proceedings. 27. 27. It may be worthwhile to highlight at this stage that the enquiry under Section 200 Cr.P.C. cannot be given a go-bye if the Magistrate refuses to accept the closure report submitted by the investigating agency as this enquiry is legally vital to protect the affected party from a frivolous complaint and a vexatious prosecution in complaint cases. The relevance, legal efficacy and vitality of the enquiry enumerated under Section 200 Cr.P.C., therefore, cannot be undermined, ignored or underplayed as non compliance of enquiry under Section 200 Cr.P.C. is of vital importance and necessity as it is at this stage of the enquiry that the conflict between the finding arrived at by the investigating agency and enquiry by the Magistrate can prima facie justify the filing of the complaint and also offer a plank and a stage where the justification of the order of cognizance will come to the fore. This process of enquiry under Section 200 Cr.P.C. is surely not a decorative piece of legislation but is of great relevance and value to the complainant as well as the accused. 28. It is no doubt possible to contend that at the stage of taking cognizance or refusing to take cognizance, only prima facie case has to be seen by the Court. But the argument would be fit for rejection since it is nothing but mixing up two different and distinct nature of cases as the principle and procedure applied in a case based on Police report which is registered on the basis of First Information Report cannot be allowed to follow the procedure in a complaint case. A case based on a complaint cannot be allowed to be dealt with and proceeded as if it were a case based on Police report. 29. While in a case based on Police report, the Court while taking cognizance will straightaway examine whether a prima facie case is made out or not and will not enter into the correctness of the allegation levelled in the F.I.R., a complaint case requires an enquiry by the Magistrate under Sec. 200 Cr.P.C. if he takes cognizance of the complaint. In case he refuses to take cognizance he may either dismiss the complaint or direct the investigating agency to enter into further investigation. In case he refuses to take cognizance he may either dismiss the complaint or direct the investigating agency to enter into further investigation. In case, he does not exercise either of these two options, he will have to proceed with the enquiry himself as envisaged and enumerated under Sec. 200 Cr.P.C. But, he cannot exercise the fourth option of directing the Police to submit a charge-sheet as such a course is clearly not envisaged under the Cr.P.C. and more so in a complaint case. 30. As already stated, this position can be clearly deduced from the catena of decisions including those referred to hereinbefore but needs to be reinstated as time and again this magisterial error reaches up to this Court for rectification by judicial intervention. 31. The instant matter is one such example and is one step ahead wherein the Special Judge was confronted with yet another legal impediment of lack of sanction for prosecution giving rise to a peculiar situation when he noticed and recorded that he could not proceed in the matter under the Prevention of Corruption Act without sanction for prosecution, but in spite of this he directed to obtain sanction, ordered for reinvestigation and consequently refused to accept closure report. 32. Since the Special Judge in the instant matter refused to accept the closure report dated 18.05.2004 without any enquiry or reason why he refused to accept it which was submitted by the Special Police Establishment, Lokayukta Office, Jabalpur after reinvestigation for which reasons had been assigned and there was also lack of sanction for prosecution against the appellant which was necessary for launching prosecution under the Prevention of Corruption Act, we deem it just and appropriate to hold that the Special Judge clearly committed error of jurisdiction by directing reinvestigation of the matter practically for the third time in spite of his noticing that sanction for prosecution was also lacking, apart from the fact that the Special Police Establishment, Lokayukta Office, after reinvestigation had given its report why the matter was not fit to be proceeded with. 33. 33. We are therefore of the considered view that the Special Judge in the wake of all these legal flaws as also the fact that the Special Judge under the circumstance was not competent to proceed in the matter without sanction for prosecution, could not have ordered for reinvestigation of the case for the third time by refusing to accept closure report dated 18.05.2004. This amounts to sheer abuse of the process of law resulting into vexatious proceeding and harassment of the appellant for more than 10 years without discussing any reason why he disagreed with the report of the Lokayukta and consequently the closure report which would have emerged if the Special Judge had carefully proceeded in accordance with the procedure enumerated for initiation of proceeding under the Code of Criminal Procedure. 34. In view of the aforesaid discussion based on the existing facts and circumstances, we deem it just and appropriate to set aside the impugned order passed by the Special Judge refusing to accept the closure report dated 18.5.2004 and consequently the judgment and order of the High Court by which the order of the Special Judge was upheld, also stands quashed and set aside. Accordingly, the appeal is allowed." 7. In the instant also the Judicial Magistrate after recording the statement of the complainant under sections 200 and 202 Cr.P.C. sent the matter to the Deputy Superintendent of Police for further investigation, cannot be said to be illegal as per the decision of the Apex Court in the case Vasanti Dubey vs. State of M.P., (2012) 2 SCC 731 , but the Magistrate to file charge-sheet in the matter. 8. For the reasons mentioned above, the order passed by the Judicial Magistrate dated 4.2.2008 and further rejecting the application by the complaint vide order dated 10.4.2008 are just and proper. The criminal misc. petition stands rejected. The stay application also stands disposed of.