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2012 DIGILAW 634 (JHR)

Upendra Kumar v. State of Jharkhand

2012-04-25

H.C.MISHRA

body2012
JUDGMENT By Court:-Heard learned counsel for the petitioner and learned A.P.P. for the State. 2. The petitioner is aggrieved by the order dated 26.8.2000 passed by learned Additional Chief Judicial Magistrate, Koderma in Koderma P.S. Case no. 375 of 1999 corresponding to G.R. No. 818 of 1999, whereby cognizance has been taken against the petitioner for the offence under Sections 181 (sic., it should be 182) and 211 of the Indian Penal Code, even though the protest petition filed by the petitioner was not disposed of by the Court below. 3. The facts of this case lie in a short compass. The petitioner had lodged a F.I.R. making out offence under Sections 143, 341, 506 and 379 of the Indian Penal Code against the accused persons, which was registered as Koderma P.S. Case no. 375 of 1999 corresponding to G.R. No. 818 of 1999. It appears that after investigation of the said case, final form was submitted by the police stating the case to be false. The police also submitted a report against the petitioner for the offence under Sections 182 and 211 IPC. It also appears that in the meantime, the petitioner had filed a protest petition, which was treated as complaint, and was registered as Complaint Case No. 200 of 2000, for the same allegations as made in the F.I.R. 4. The learned Additional Chief Judicial Magistrate, Koderma by order dated 26.8.2000 accepted the final form submitted by the police and also directed that the complainant may examine his witnesses under Section 202 Cr.P.C. in the complaint case and the case was fixed for 8.9.2000 for recording the statement of the complainant on solemn affirmation. However, it appears that by another order dated 26.8.2000 itself, the Court below took cognizance for the offence under Sections 182 and 211 I.P.C. against the petitioner as well. 5. Learned counsel for the petitioner has submitted that the impugned order passed by the learned Court below is absolutely illegal, inasmuch, on the date of cognizance against the petitioner under Sections 182 and 211 I.P.C., the complaint of the petitioner was still pending in the enquiry stage and in the said case, the date was fixed on 8.9.2000 for recording the statement of the complainant on solemn affirmation. Learned counsel, accordingly, submitted that cognizance for the offence under Sections 182 and 211 I.P.C. is absolutely bad, inasmuch, no cognizance could have been taken without disposing of the complaint-cum-protect petition filed by the petitioner, or rejecting the same under Section 203 I.P.C. Learned counsel in this connection has placed reliance upon a decision of the Patna High Court in the case of Abhiram Sharma Vs. State of Bihar & ors., reported in [2010 (4) East. Cr. C. 462 (Pat)], wherein the Patna High Court has relied upon a decision of the Supreme Court of India in the case of State of Punjab Vs. Brij Lal Palta ( AIR 1969 SC 355 ) and has laid down that in a case, protest petition was filed before filing of final form and the protest petition was treated as complaint, in which, cognizance was also taken by the Court on the basis of the complaint, there was no need to allow the prosecution of the petitioner for the offence under Section 182 I.P.C. In State of Punjab Vs. Brij Lal Patla's case (supra), the Supreme Court had taken similar view in case of prosecution of the informant under Sections 182, 211 and 193 I.P.C. Learned counsel has accordingly, submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law. 6. Learned A.P.P., on the other hand, has opposed the prayer submitting that there is no illegality in the impugned order, inasmuch as on the basis of investigation made by the police, it was found that the case instituted by the petitioner was absolutely false and accordingly, the police recommended for prosecution of the petitioner under Sections 182 and 211 IPC. 7. After having heard learned counsels for both the parties and upon going through the impugned order, I find that admittedly, the protest-cum-complaint petition filed by the petitioner was pending on the date on which the cognizance was taken against the petitioner under Section 182 and 211 IPC. 7. After having heard learned counsels for both the parties and upon going through the impugned order, I find that admittedly, the protest-cum-complaint petition filed by the petitioner was pending on the date on which the cognizance was taken against the petitioner under Section 182 and 211 IPC. The impugned order clearly shows that while accepting the final form submitted by the police, the Court below had deferred the enquiry in the protest-cum-complaint petition filed by the petitioner and had adjourned the matter to 8.9.2000 for recording statement of the complainant on solemn affirmation, but again by a separate order dated 26.8.2000 itself, the Court had taken cognizance for the offence under Sections 182 and 211 IPC against the petitioner. 8. In view of the law settled by the Supreme Court of India in State of Punjab Vs. Brij Lal Patla (Supra), relied upon by the Patna High Court in the case of Abhiram Sharma (supra), in my considered view, cognizance against the petitioner could not have been taken without disposing of the complaint-cum-protest petition filed by the petitioner for the same allegations as made in the F.I.R. The impugned order, accordingly, suffers from inherent illegality and cannot be sustained in the eyes of law. 9. In the view of the aforementioned discussions, the impugned order dated 26.8.2000 passed by the learned Additional Chief Judicial Magistrate, Koderma, in Koderma P.S. Case no. 375 of 1999 corresponding to G.R. No. 818 of 1999, whereby cognizance was taken against the petitioner for the offence under Sections 182 and 211 of the Indian Penal Code is, hereby, set aside. This petition is, accordingly, allowed.