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2013 DIGILAW 118 (UTT)

Mohan Chandra Bhatt v. State of Uttaranchal

2013-03-08

ALOK SINGH

body2013
JUDGMENT Alok Singh, J. 1. By way of present revision, revisionist is assailing order dated 14.03.2005, passed by Special Judicial Magistrate, Pithoragarh in Criminal Case No. 30 of 2005, whereby learned Magistrate has refused to discharge the accused and proceeded to frame charges against accused for the offences punishable under Section 323, 324, 506, 354 IPC. 2. Brief facts of the present case inter alia are that on 11.04.2004, revisionist no.1 lodged an FIR with Police Station, Kotwali (Sadar), Pithoragarh, which was registered as Case Crime No. 489 of 2004 for an offence punishable under Section 395 IPC against Bhure Mia and others. Copy of which is annexed as Annexure No.1 to the revision. Thereafter, on the same day Bhure Mia also submitted a report to the Police Station, Kotwali, Pithoragarh, Annexure No.2 to the revision stating that when he and Shakeel objected the revisionist not to flow water towards them, then revisionist started beating them and extended threat, whereupon, police registered the case as NCR No. 39 of 2004 for an offence punishable under Section 506, 323, 504 IPC. Three days thereafter i.e. on 13.04.2004, Tabassum and Mohd. Salim submitted an application before Superintendent of Police, Pithoragarh along with an affidavit stating therein that they had been miserably beaten and they had suffered injuries at the hands of revisionist. Having received the affidavits and medical report police started investigation on NCR No. 39 of 2004 and thereafter submitted a charge sheet against revisionist for an offence punishable under Section 354, 323, 504, 506 IPC. From the side of revisionist, objection was raised to the effect that once NCR was registered, police has absolutely no jurisdiction to commence the investigation without taking prior approval or direction from the Magistrate, in view of Section 155 (2) of the Cr. P.C. However, learned Magistrate has opined that since police had investigated the matter and submitted charge sheet against the revisionist for the offences, which were cognizable in nature, therefore objection raised by the revisionist were not tenable. Feeling aggrieved revisionist has approached this Court. 3. Mr. P.C. However, learned Magistrate has opined that since police had investigated the matter and submitted charge sheet against the revisionist for the offences, which were cognizable in nature, therefore objection raised by the revisionist were not tenable. Feeling aggrieved revisionist has approached this Court. 3. Mr. B.S. Adhikari, learned counsel appearing for the revisionist, while placing reliance of the judgment of Delhi High Court in the case of Mamchand and Others vs. State, 1999 CRLJ 1512 has argued in the present matter initiation of the investigation itself was without jurisdiction, therefore, taking subsequent affidavit filed by alleged injured and filing of charge sheet for cognizable offence punishable under Section 324 IPC is not permissible, therefore Magistrate ought to have accepted the objections raised by the revisionist. He further argued that Medico Legal Report of Tabassum and Mohd. Salim would also suggest that none of them received any grievous injury justifying inclusion of Section 324 IPC. He has further argued that medical report would suggest that both of them sustained only simple injuries. 4. I have carefully perused photocopy of Medico Legal Report tendered by Mr. B.S. Adhikari, which is taken on record and marked as ‘A’. A perusal of Medico Legal Report would suggest that on the body of Tabassum, doctor has noticed abrasion while on the person of Mohd. Salim, he has noticed abrasion and one lacerated wound and no serious injury has been noticed by the Medical Officer. 5. Learned Single Judge of Delhi High Court in the case of Mamchand (Supra) in para 9 and 10 held as under: “9. As noted above, according to the opinion of the Doctor on the MLC the injuries found on the body of the complainant were simple in nature, which clearly shows that the alleged injuries inflicted by the petitioners were neither sufficient in the ordinary course of nature to cause death nor were likely to cause death and, therefore, a case under S. 324, IPC could not be made out against the petitioners. Thus, at best it was a case only for an offence under S. 323 read with S. 34 I.P.C. for which the petitioners have been charged. Admittedly, no order as contemplated under S.155(2) of the Code was obtained by the police before undertaking investigation in the case. Thus, at best it was a case only for an offence under S. 323 read with S. 34 I.P.C. for which the petitioners have been charged. Admittedly, no order as contemplated under S.155(2) of the Code was obtained by the police before undertaking investigation in the case. In Rupan Deol Bajaj vs. Kanwar Pal Singh Gill, 1996 Cri LJ 381 : AIR 1996 SC 309 and Keshav Lal Thakur’s case (supra), the Supreme Court observed that where the allegations in the FIR do not constitute a cognizable offence constitute a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code and such investigations, if carried out, would not be validated even by an order of the Magistrate obtained subsequently. 10. I do not find much substance in contention urged on behalf of the State that since the FIR was registered under S.324 IPC and the said offence being cognizable, there was no bar in the police investigating the case. Once, on the circumstances prevalent at the time of registration of the case, it is evident that a non-cognizable offence is not made out, permitting the police to first register a cognizable offence, carry out investigations and ultimately if it is found that a cognizable offence was not made out, would be giving a long rope to the police. The nature of the offence is to be gathered from the facts available at the relevant time and if there is a doubt as to whether a cognizable offence is made out or not, the police can report it to the Magistrate concerned and obtain appropriate orders. On the one hand, no prejudice will be caused to the prosecution by adopting a safer course and on the other it will eliminate the possibility of misuse of power by the police. This approach will also be in consonance with the spirit and intention of S. 155 of the Code.” 6. I have carefully perused the affidavit filed by Tabassum and Mohd. Salim and application filed before Superintendent of Police, Pithoragarh. 7. In the present case too, initially NCR was registered, therefore, police was not at all competent to commence investigation without obtaining order from the learned competent Magistrate, as required under Section 155(2) of Cr. I have carefully perused the affidavit filed by Tabassum and Mohd. Salim and application filed before Superintendent of Police, Pithoragarh. 7. In the present case too, initially NCR was registered, therefore, police was not at all competent to commence investigation without obtaining order from the learned competent Magistrate, as required under Section 155(2) of Cr. P.C. therefore, in view of the dictum of Delhi High Court commencement of investigation and filing of impugned charge sheet pursuant thereto is without jurisdiction. Moreover, addition of Section 324, 354 in the NCR on the facts of the present case seems to be totally unjustified, therefore, impugned order cannot be sustained in the eyes of law, consequently the revision is allowed and impugned order dated 14.03.2005, is hereby set aside. All the proceedings of Criminal Case No. 30 of 2005 pending before Special Judicial Magistrate 1st Class, Pithoragarh are hereby quashed. However, it is clarified that complainant shall be at liberty to take such other legal recourse, available under the law, which he deems fit.