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Madhya Pradesh High Court · body

2013 DIGILAW 1187 (MP)

Awadhesh Prasad Tiwari v. State of M. P.

2013-10-01

N.K.GUPTA

body2013
ORDER N.K. Gupta, J. 1. The applicant has preferred the present petition under section 482 of the Cr.P.C. against the order dated 11.1.2011 passed by the learned JMFC, Damoh in criminal case No. 67/2011, whereby the cognizance of offence punishable under section 4 of the SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter it will be referred to as 'Special Act') was taken against the applicant. The facts of the case, in short, are that, the prosecutrix/complainant had lodged an FIR against Arvind Yadav and Rajendra Yadav for offence punishable under section 341, 354, 506B read with section 34 of IPC and section 3(1)(xi) of the Special Act. Thereafter, the case was investigated. In investigation, one Kanno @ Kamla Bai, cousin of the prosecutrix and other 4 witnesses were believed to have stated that nothing was done by the accused persons with the prosecutrix. Thereafter, the applicant who was the investigation officer has submitted a final report before the higher authorities and with the recommendation of S.P., Damoh, a final report was filed before the JMFC, Damoh (Shri S.S. Jamra). In consideration of final report, the prosecutrix was called for her examination and the prosecutrix had filed a criminal complaint against the accused Arvind Yadav and Rajendra Yadav. The various witnesses including the prosecutrix, Devraj Singh and Bhuri Bai were examined under sections 200 and 202 of the Cr.P.C. On 11.1.2011, the learned JMFC registered a complaint against the accused persons and also found that the prosecutrix and other witnesses have stated that SDOP, Tendukheda (the applicant) threatened them to get the signature of the prosecutrix on blank papers and also obtained the signatures and thumb impressions of various witnesses on blank papers and therefore, the learned JMFC had directed that the SDOP, Tendukheda be also made an accused in the case. Thereafter, order on merits was passed later on, in which it was directed that a case for offence punishable under section 4 of Special Act may be registered against the applicant. 2. I have heard the learned counsel for the parties. 3. The respondent No. 2 did not appear before the Court, though she was represented and her counsel did not appear on various dates and therefore, an SPC was issued for appearance on 19.9.2013 of the respondent No. 2 and her Advocate but, none appeared for the respondent No. 2. 4. I have heard the learned counsel for the parties. 3. The respondent No. 2 did not appear before the Court, though she was represented and her counsel did not appear on various dates and therefore, an SPC was issued for appearance on 19.9.2013 of the respondent No. 2 and her Advocate but, none appeared for the respondent No. 2. 4. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that at present, no petition has been filed by the accused Arvind Yadav and Rajendra Yadav and therefore, it will not be proper to discuss the matter on merits against those accused persons and registration of complaint against those accused persons. Therefore, in the present case, only the order relating to registration of a case against the applicant is to be considered. 5. According to the provisions of section 190 of the Cr.P.C., the Magistrate can take cognizance in three different methods. Firstly, if charge-sheet is filed. Secondly, if any complaint is filed and thirdly, if the Magistrate takes a suo-moto cognizance. In the present case, no complaint was filed against the applicant by the respondent No. 2. It was filed against Arvind Yadav and Rajendra Yadav and to show that the case was genuine, Bhuri Bai and others alleged that the investigation officer took the signature and thumb impression of the prosecutrix and other witnesses on blank papers and therefore, it is apparent that initially no complaint was lodged against the applicant. By perusal of the impugned order, it is no where clear that the learned Magistrate took a suo-moto cognizance against the applicant. It is mentioned in the order-sheet that on the complaint of the complainant, a case was registered. Complaint cannot be made orally. It should be in writing and in support of that complaint, statements under sections 200 and 202 of the Cr.P.C. should be given. It is surprising that without filing any complaint against the applicant, the learned JMFC has registered a complaint against the applicant. 6. Complaint cannot be made orally. It should be in writing and in support of that complaint, statements under sections 200 and 202 of the Cr.P.C. should be given. It is surprising that without filing any complaint against the applicant, the learned JMFC has registered a complaint against the applicant. 6. The allegation was made by the witnesses Bhuri Bai and others that the investigation officer threatened them to take the signature of the prosecutrix and thumb impressions of various witnesses on blank papers but, if statement under section 161 of the Cr.P.C. recorded by the investigation officer are perused then, there is no modification in the statement given by the prosecutrix or Bhuri Bai. For recording of case diary statement, there is no need to the investigation officer to take signature or thumb impression of the witnesses or of the prosecutrix. Also, except Devraj Singh (P.W. 3), remaining witnesses did not say anything against the applicant, they have made omnibus allegations against police of Tendukheda. Whereas Devraj Singh told that a lady D.S.P. came in a vehicle belonging to D.S.P. Tendukheda. Under such circumstances, allegations made by the witnesses were not directly against the applicant. If the applicant had taken such thumb impressions of the witnesses and signature of the prosecutrix on blank papers then, he would have used those papers somewhere. It could not be shown by the witnesses and therefore, prima facie it appears that the witnesses are telling a falsehood to establish that their FIR was correct and the final report filed by the applicant was filed with mischief. The learned JMFC did not consider as to whether the allegations made by the witnesses were correct or not. The facts mentioned in the statements of the prosecutrix and Bhuri Bai were the same as mentioned in the FIR and therefore, it cannot be said that the applicant twisted the story of the prosecution in the statements recorded by various witnesses. In the FIR, it was mentioned that Kanno Bai @ Kamla did not support the prosecution's story, she told the investigation officer that no such incident took place. But, before the JMFC, Kamla again changed her version. The FIR is delayed by 20 hours, it is possible that the prosecutrix would have spent sometime to prepare her cousin Kamla to support her. But, before the JMFC, Kamla again changed her version. The FIR is delayed by 20 hours, it is possible that the prosecutrix would have spent sometime to prepare her cousin Kamla to support her. After mentioning name of Kamla as eye witness, she did not support the case before the police and when a final report was filed, she came in support of her cousin again. 7. Under such circumstances, it is apparent that the investigation officer did a fair investigation and he found that the prosecutrix had lodged a fake FIR against the accused persons and therefore, he moved for final report under section 169 of the Cr.P.C. The learned counsel for the applicant also submitted that after examining the entire papers, S.P., Damoh vide letter dated 4.11.2010 (Annexure A/6) has intimated SDOP, Tendukheda that after perusal of the case diary, it was found that a fake report has been lodged by the prosecutrix and therefore, a final report be submitted before the Magisterial Court and thereafter, proceedings under section 182 and 211 of Cr.P.C. may be initiated. Under such circumstances, there is no overt-act of the applicant established before the Magisterial Court that he committed any offence under section 4 of the Special Act. 8. If the investigation officer finds that a false FIR has been lodged then, it is his duty to file a final report under section 169 of the Cr.P.C. and when after perusal of the case diary, report is confirmed by the SP of that district then, it cannot be said that the investigation officer has done anything against a person of scheduled caste or scheduled tribe while investigating the matter. 9. On the basis of the aforesaid discussion, vague allegations made by the various witnesses during their statements under sections 200 and 202 of the Cr.P.C. were not at all established prima facie from the investigation record and the investigation officer took the steps according to the law by getting the permission from S.P., Damoh to file a final report then, no prima facie offence under section 4 of the Special Act was made out against the investigation officer i.e. the applicant. The learned JMFC has directed to register a complaint against the applicant in a hurry haste manner. The learned JMFC has directed to register a complaint against the applicant in a hurry haste manner. It would be apparent that he passed an order on 11.1.2011 for registration of complaint against the investigation officer and thereafter, he adjourned the case for registration of the complaint and again a detailed order was passed thereafter, which indicates some prejudice of the Magistrate against the applicant. Such type of activities is not expected from a Judicial Magistrate. However, prima facie no offence under section 4 of the Special Act is constituted against the applicant and therefore, the impugned order passed by the learned JMFC, Damoh appears to be of no basis. It is apparently a perverse order, which cannot be maintained. 10. On the basis of the aforesaid discussion, the petition under section 482 of the Cr.P.C. filed by the applicant Awadhesh Prasad Tiwari is hereby allowed. The order dated 11.1.2011 passed by the learned JMFC, Damoh in criminal case No. 67/2011 relating to the applicant is hereby set aside. No offence under section 4 of the SC/ST (Prevention of Atrocities) Act is made out against the applicant. A copy of the order be sent to the trial Court for information and compliance with the direction that matter be dropped against the applicant.