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2012 DIGILAW 653 (HP)

Prem Singh v. Hans Raj

2012-10-01

KULDIP SINGH

body2012
Judgment Kuldip Singh, J. 1. This petition under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code has been filed for quashing order dated 03.12.2011 passed by learned Judicial Magistrate Ist Class, Court No.1, Mandi, in Cr.M.A. No.19/2011. 2. It has been stated that petitioner had filed complaint under Section 156(3) of the Code before learned Judicial Magistrate Ist Class, Court No.1, Mandi. The respondent No.2 was the Investigating Officer of the accident took place on 27.02.2006, when petitioner on duty was going from Lunapani to Mandi on his bike bearing No.HP-33A-3976. The accident took place at Gutkar at 9.45 a.m. due to negligence of respondent No.1, who was driving bus HP-32A-0475. The petitioner suffered multiple injuries. The Medical Board has assessed 20% permanent disability of the petitioner. 3. The respondent No.2 Head constable of Police Station, Balh, was the Investigating Officer. He wrongly and in connivance with the owner of the bus HP-32A-0475 stated that respondent No.4 Gian Chand was driving the bus at the time of accident and not respondent No.1 Hans Raj. It has been stated that Hans Raj did not have any effective and valid driving licence to drive the bus at the time of accident. The respondent No.3 Subhash Chand, owner of the bus, wrongly gave the name of Gian Chand just to escape his liability. The petitioner at the time of accident was not in a position to make statement when his statement was recorded at Harihar Hospital, Mandi, on 27.02.2006. At that time, petitioner has mentioned the name of Pawan Kumar. The petitioner after recovery came to know that respondent No.1 Hans Raj was driving the vehicle at the time of accident. 4. The Investigating Officer has given time of accident 11.40 a.m. The Investigating Officer has wrongly made false spot map. The Investigating Officer of the accident has not properly investigated the case in connivance with other respondents. The Investigating Officer has shown that Gian Chand was driving the bus instead of Hans Raj. The petitioner had made a representation to Superintendent of Police, Mandi, for registration of case against respondent No.2. A show-cause was issued to respondent No.2 on 15.05.2007 by Additional Superintendent of Police, Mandi. The Office of Superintendent of Police, Mandi, vide letter dated 11.06.2007 asked the explanation of respondent No.2. The petitioner had made a representation to Superintendent of Police, Mandi, for registration of case against respondent No.2. A show-cause was issued to respondent No.2 on 15.05.2007 by Additional Superintendent of Police, Mandi. The Office of Superintendent of Police, Mandi, vide letter dated 11.06.2007 asked the explanation of respondent No.2. The petitioner did not hear any favourable decision from Superintendent of Police, Mandi, he filed complaint under Section 156(3) of the Code. The Police Station, Balh, has filed the report and supported the investigation conducted by respondent No.2. The accident has been caused due to the negligence of respondent No.1, who was driving the bus. 5. It has been stated that impugned order dated 03.12.2011 is wrong, illegal and is liable to be set aside. The learned Magistrate exercised jurisdiction wrongly, illegally and with material irregularity. The learned Magistrate has misconstrued and misinterpreted the material on record and has erred in passing the impugned order. 6. Heard. A copy of judgment dated 02.01.2010 passed by learned Additional Chief Judicial Magistrate, Court No.1, Mandi, in Criminal Case No.214-I/06/72-II/06 is on record of the trial Court file. It emerges from the judgment dated 02.01.2010 that on the statement under Section 154 Cr.P.C. of petitioner, FIR was registered on 27.02.2006. The petitioner in his statement under Section 154 Cr.P.C. has stated that Pawan Kumar was driving bus HP-32B-0475 at the time of accident. However, during the course of investigation, it was found that bus was not being driven by Pawan Kumar, as stated by petitioner in his statement under Section 154 Cr.P.C. It was found that bus was being driven by Gian Chand at the time of accident. The learned Additional Chief Judicial Magistrate on 02.01.2010 acquitted Gian Chand. 7. The police has filed report which is on record of trial Court file. The petitioner initially named Pawan Kumar and said that he was driving the bus. In the report, it has been stated at the time of accident Gian Chand was driving the bus HP-32B-0475. It has been denied that name of Gian Chand was introduced at the instance of Mohan Lal and Subhash Chand. It has been denied that at the time of accident Hans Raj was driving the bus. 8. In the report, it has been stated at the time of accident Gian Chand was driving the bus HP-32B-0475. It has been denied that name of Gian Chand was introduced at the instance of Mohan Lal and Subhash Chand. It has been denied that at the time of accident Hans Raj was driving the bus. 8. The learned Additional Chief Judicial Magistrate in judgment dated 02.01.2010 has observed that in further cross-examination complainant Prem Singh has deposed on oath that he has not given any statement to the police that the bus in question was being driven by accused Gian Chand. Prem Singh has deposed on oath that bus in question was not being driven by accused Gian Chand. Gian Chand was acquitted by learned Additional Chief Judicial Magistrate. The petitioner was complainant of the case in which Gian Chand was acquitted, he did not challenge the acquittal of Gian Chand. In the judgment dated 02.01.2010 bus involved in the accident has been mentioned HP-32B-0475. In the complaint under Section 156(3) Cr.P.C., bus number has been given HP-32A-0475. 9. The petitioner in the complaint under Section 156(3) Cr.P.C. has prayed investigation that accident dated 27.02.2006 was caused by Hans Raj and not by Gian Chand. The petitioner himself has taken different stands regarding the accident. The first version of the petitioner was that Pawan Kumar was driving the bus. He took the stand that Gian Chand was not driving the bus. Now he has taken the stand that Hans Raj was driving the bus. There is no consistency in the stand of petitioner. 10. The Magistrate under Section 156(3) Cr.P.C. is not required to pass order for police investigation just on the asking of the complainant. The Magistrate is to apply mind whether in the facts and circumstances of the case, Section 156(3) Cr.P.C. is to be invoked or not. In the present case, the learned Magistrate has rightly refused to order the investigation under Section 156(3) of the Code. The Magistrate has committed no jurisdictional error in declining to proceed under Section 156(3) of the Code. There is no merit in the petition, hence dismissed.