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2013 DIGILAW 766 (HP)

Amar Dutt v. Babli Devi

2013-08-22

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J The only question, needs adjudication in this petition, is that the complaint of which cognizance has been taken by learned Judicial Magistrate, 1st Class, Rampur, was time barred and as such the impugned order dated 27.5.2013 is not legally and factually sustainable. 2. Complainant Smt. Babli Devi wife of Ram Lal is a member of scheduled caste community. On 6.8.1975, the government had sanctioned Nautor land, measuring 5 Bighas, bearing Khasra No.296/2, situate in village Konthroo, Tehsil KUmarsain, District Shimla, under H.P. Utilization of Surplus Area Scheme, 1974, in the name of her father-in-law Shri Parma Nand. After its allotment, he raised construction of a single storeyed house thereon. The petitioners (accused persons in the trial Court) fenced the said land with barbed wire in a manner obstructing thereby the path being used by them to have access to their house, in the absence of her husband, who is a driver by profession. On 31.1.2000, when she objected to such fencing of land by the accused- petitioners, she alongwith her children as well as father-in-law and mother-in-law, was beaten up mercilessly. Matter was reported to the police of Police Post, Narkanda on 2.2.2000, after her husband returned to house and Rapat No.8 to this effect was entered in the Rojnamcha. The police allegedly neither registered the case against the accused-petitioners nor took any action against them. It has led in making a complaint dated Nil through Shri B.N. Mehta, Advocate, to His Excellency the Governor of Himachal Pradesh. 3. Consequent upon the direction issued to the police on the aforesaid complaint, FIR No.10/06 was registered under Sections 447, 427, 506, 379 of the Indian Penal Code and Section 3(1) (v)(vi) and (xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Police filed cancellation report. The same, however, was not accepted by the Court below and the matter rather was sent back to SDPO, Rampur for conducting re-investigation vide order dated 15.6.2007. In the meanwhile, a complaint also came to be instituted by the complainant under Section 200 Cr. P.C. before learned judicial Magistrate below on 22.12.2007. Police filed cancellation report. The same, however, was not accepted by the Court below and the matter rather was sent back to SDPO, Rampur for conducting re-investigation vide order dated 15.6.2007. In the meanwhile, a complaint also came to be instituted by the complainant under Section 200 Cr. P.C. before learned judicial Magistrate below on 22.12.2007. Pending submission of the report by the police, learned Magistrate had taken cognizance of the offence punishable under Sections 447, 427, 506, 379, 323 IPC and Section 3(1)(v)(vi) (xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act against the accused persons vide order dated 1.7.2008. Against the said order, the accused-petitioners preferred Cr. MMO No.155/2009 before this Court, which was disposed of with the following directions: “ The complaint was filed in the Court on 22nd December, 2007 with respect to the incident which took place in the year 2000. At that time, the matter was still pending investigation. While conducting the enquiry under Section 200 of the Code of Criminal Procedure, the learned trial Court despite coming to its notice conveniently ignored the provisions of Section 210 of the Code of Criminal Procedure. He did not call for the investigation report for consideration while considering the matter for issuing the process. Therefore, in these circumstances the impugned order dated 1st July, 2008 (Annexure P-6) is hereby quashed and set aside and it is directed that the learned trial Court shall call for the report of the investigation and thereafter hear the learned counsel for the complainant and on going through the evidence recorded by him and also after the police report shall pass the appropriate orders in the matter, as he deems fit under the law.” 4.In the light of the directions issued by the High Court, learned Magistrate below had reconsidered the matter afresh and passed the order dated 14.10.2011 to proceed further against the accused persons for the commission of offences, punishable under Sections 147, 447, 427, 323 and 506 read with Section 149 of the Indian Penal Code, while disagreeing with the cancellation report again filed by the police on 15.11.2009. Consequently, process against them was ordered to be issued accordingly. On the question of delay, learned Magistrate has observed as under: “ It has been found that police machinery did not proceed pursuant to Nakal Rapat No.8 dated 2.2.2000. Consequently, process against them was ordered to be issued accordingly. On the question of delay, learned Magistrate has observed as under: “ It has been found that police machinery did not proceed pursuant to Nakal Rapat No.8 dated 2.2.2000. In view of this, delay matter has nothing to do in the present case, particularly when vide Nakal Rapat No.8, it has been found that the complainant specifically requested the police machinery for getting her medically examined, as she was beaten by the accused persons. Accused-petitioners on entering appearance, have filed an application under Section 245(2) read with Section 468 of the Code of Criminal Procedure for quashing the order dated 14.10.2011 supra, taking cognizance of the offence, the accused-petitioners allegedly committed, on the ground that the alleged offence being punishable with three years imprisonment and allegedly committed in the year 2000, no cognizance thereof could have been taken after the expiry of the period of three years as provided under Section 468 of the Code of Criminal Procedure. Learned Magistrate after having taken on record the version of the complainant and hearing learned counsel, has dismissed the application while arriving at a conclusion that her predecessor-in-interest, while taking cognizance of the offence vide order dated 14.10.2011, had concluded that the delay has nothing to do in this case and there are sufficient grounds to proceed against the accused persons. Consequently, the case was fixed for further proceedings, i.e. consideration of charge.The legality and validity of this order as well as order dated 14.10.2011, has been questioned before this Court on the grounds, inter alia, that since the alleged occurrence is of 31.1.2000 and the police had filed the cancellation report, therefore, the complaint filed on 22.12.2007 could have not been entertained nor cognizance of the offences, the accused-petitioner allegedly has committed, taken being time barred. Also that the complaint initially was against two persons and now all the accused- petitioners have been arrayed as such in the complaint without there being any reference of their role in the Rapat Rojnamcha dated 2.2.2000. The accused-petitioners, therefore, are stated to be implicated falsely in this case merely to harass them. 5.True it is that Rapat Rojnamcha dated 2.2.2000 discloses the commission of offence under Sections 427, 447 and 506 IPC. The police, however, failed to register any case irrespective of the report having been made by the complainant. The accused-petitioners, therefore, are stated to be implicated falsely in this case merely to harass them. 5.True it is that Rapat Rojnamcha dated 2.2.2000 discloses the commission of offence under Sections 427, 447 and 506 IPC. The police, however, failed to register any case irrespective of the report having been made by the complainant. The accused as per the Rapat Rojnamcha are Parma Nand, Amar Dutt, Devi Saran, Rakesh Deep, Jeet Ram etc., who are petitioners No.7, 1, 15, 5 & 14, respectively. In the complaint subsequently made to His Excellency, the Governor of Himachal Pradesh, commission of offence under Section 379 IPC and Section 3(1)(v)(vi)(xv) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, is also disclosed. It is on the directions issued in this complaint, FIR No.10/2006 came to be registered in Police Station, Kumarsain against the accused-petitioners on 9.1.2006. Police, however, filed cancellation report, which was not accepted and learned Magistrate below had directed the police to reinvestigate the matter. Reinvestigation seems to have been conducted. However, again cancellation report was filed on 15.11.2009. 6.It is in the aforesaid back ground, the question of delay has to be adjudicated upon. Since the report was made after two days of the occurrence by the complainant to the police and the police did not take any action against the culprits nor registered any case against them, therefore, there is no question of any delay, particularly when subsequently FIR also came to be registered in this matter on 9.1.2006 at the instance of the authorities in which the investigation remained in progress till November, 2009. When the police did nothing in this case and filed cancellation report, a private complaint also came to be filed in the lower Court on 22.12.2007. The trial Court had rightly taken cognizance of the offences, the accused-petitioner allegedly committed. On the direction of this Court, the matter was reconsidered in the light of Section 210 of the Code of Criminal Procedure and learned Magistrate, while disagreeing with the cancellation report, has rightly taken cognizance of the offence vide a reasoned order dated 14.10.2011 impugned in this petition. On the direction of this Court, the matter was reconsidered in the light of Section 210 of the Code of Criminal Procedure and learned Magistrate, while disagreeing with the cancellation report, has rightly taken cognizance of the offence vide a reasoned order dated 14.10.2011 impugned in this petition. Above all, the offence, the accused petitioners allegedly committed, is continuing one for the reason that the complainant and her family, when scared of the accused-petitioners had to leave their house and land at village Konthroo and as per the statement of the complainant recorded by learned Magistrate below, they are residing at Kumarhatti in District Solan, for the last seven years. Therefore, the offence the accused allegedly committed is continuing one and on this score also, it lies ill in their mouth to say that no cognizance could have been taken against them being barred under Section 468 of the Code. The judgment, i.e. Shyam Sunder Sharma Vs. State of Assam, 1988 Cr. LJ 1560 is, therefore, not attracted in the case in hand. The law laid down in Pradeep and others Vs. State of Rajasthan and another, 2005 Cri. L.J. 1056, is also not applicable in this case. Since there was no delay in taking cognizance by the Magistrate, therefore, the accused-petitioners were not required to be served with the show cause notice before taking cognizance of the offence, they allegedly committed and as such the judgments of the Apex Court in P.K. Choudhury Vs. Commander, 48 BRTF (GREF), 2008(2) Cri. Court Cases 126 (SC) and Vipin Kalra and another Vs. State, 2003 CRI. L.J. NOC 51 (Delhi) are also not applicable in this case. On the other hand, the issue is covered in favour of the respondent by a judgment of this Court in Jasbir Singh and others Vs. State of H.P., Latest HLJ 2012 (HP) 356, which reads as follows: “6. The Section 472 Cr.P.C. provides that in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. The Section 473 Cr.P.C. provides that Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts that in the circumstances of the case the delay has been properly explained or it is necessary so to do in the interest of justice. The Section 473 Cr.P.C. provides that Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts that in the circumstances of the case the delay has been properly explained or it is necessary so to do in the interest of justice. It is thus clear that under Section 472 Cr.P.C., fresh period of limitation starts every moment during which the offence continues.” There is no denying to the law laid down in Moti Pathak and others Vs. State of U.P., 1988(2) Crimes 659 and Prabhakaran Vs. State of Kerala, 1986, Cri. L. J. 1411. However, I propose to dismiss this petition on the grounds other than those on the basis whereof the issue involved in the above judgments was decided. 7.The Magistrate is competent to take cognizance of the offence on a complaint irrespective of the police having submitted a final report, indicating that no case was made out against the accused. It is held so by the Apex Court in Tula Ram and others Vs. Kishore Singh, (1977) 4 SCC 459 : “14. In these circumstances we are satisfied that the action taken by the Magistrate was fully supportable in law and he did not commit any error in recording the statement of the complainant and the witnesses and thereafter issuing process against the appellants. The High Court has discussed the points involved threadbare and has also cited number of decisions and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge: 1. That a Magistrate can order investigation under Section 156 (3) only at the pre- cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156 (3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Sec. 202 of the Code. 2. 2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives: (a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses. (b) The Magistrate can postpone the issue of process and direct an enquiry by himself. (c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint. Where a Magistrate orders investigation by the police before taking cognizance under Section 156 (3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 as described above.” It is further canvassed that during the pendency of this petition, the Court below has proceeded even to frame the charge also against the accused-petitioners. The order framing charge is, however, not under challenge in this petition and as such not an issue to be adjudicated upon. Therefore, having regard to the record of this case and also the submissions made on both sides, I find no illegality and infirmity in the impugned order passed on 14.10.2011 and 27.5.2013. The same rather deserve to be upheld.This petition, therefore, fails and the same is accordingly dismissed.