Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 973 (HP)

Karam Singh v. Bansi Ram

2014-07-24

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge (Oral): The petitioners seek the quashing and setting-aside the order dated 21.12.2013 passed by the learned Additional Sessions Judge, Ghumarwin, wherein he affirmed and upheld the order dated 28.1.2012 passed by the learned Judicial Magistrate Ist Class, Ghumarwin whereby the petitioners have been ordered to be summoned for commission of offence, punishable under sections 147, 323, 434, 447, 451, 504 and 506 IPC. These proceedings have been challenged on the ground that the same are manifestly illegal, improper and vitiated with material illegality and irregularity on account of the fact that both the courts below have ignored that an FIR on the same allegations had been registered against the petitioners, which culminated into filing of a cancellation report. 2. It was argued that once the cancellation report itself had been filed by the police then the Magistrate had no jurisdiction or authority to have taken cognizance of the offence or issue process. The learned counsel for the petitioners has placed reliance on the judgement of Rajasthan High Court Daleep Singh vs. Smt. Magan 1996 Crl. L.J. 190 to contend that non-consideration of the cancellation report tantamounts to abuse of the process of the court and the order taking cognizance of the offence was not sustainable. He relied upon the following observations from the aforesaid judgement:- “13. In the case on hand, the learned Magistrate has not at all considered the report of the S.H.O., P.S., Sardar Shahar dated 24-10-1987, which was accompanied with the statements of the complaint and her witnesses. As mentioned earlier, the report was sent for by the Magistrate by sending a copy of the criminal complaint. Thus, the said report constituted material under Section 202, Cr.P.C, Consideration of the material under Section 202, Cr.P.C. is not an empty formality. Such consideration cannot be done in a perfunctory or mechanical manner or by adopting a superficial approach. Therefore, non-consideration of the aforementioned material under Section 202, Cr.P.C. ignoring the same and taking cognizance is tantamount to abuse of the process of the Court and on this ground, the impugned order cannot be sustained.” 3. Such consideration cannot be done in a perfunctory or mechanical manner or by adopting a superficial approach. Therefore, non-consideration of the aforementioned material under Section 202, Cr.P.C. ignoring the same and taking cognizance is tantamount to abuse of the process of the Court and on this ground, the impugned order cannot be sustained.” 3. I am afraid that the arguments of the learned counsel are totally misplaced and further reliance placed upon the judgement of the Rajasthan High Court is also not sustainable in view of the law laid down by the Hon’ble three Judges of Hon’ble Supreme Court in M/s India Carat Pvt. Ltd. Vs. State of Karanataka and another AIR 1989 SC 885 , wherein it has been clearly held that Magistrate can take cognizance of the offence even if the police report is to the effect that no case was made out against the petitioners. As a necessary corollary, even a private complaint despite submission of the cancellation report would be maintainable upon which cognizance can be taken by the Magistrate. It is apt to reproduce the following observations from the aforesaid judgement:- “16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer ;and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer ;and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.” “18. In the light of our conclusion, the appeal succeeds and the order of the High Court is set aside. The order of the Second Additional Chief Metropolitan Magistrate, Bangalore will stand restored and the case against the second respondent will be proceeded further in accordance with law.” 4. Apart from above, the mere fact that Magistrate had accepted the final report, would not itself stand in his way to take cognizance of the offence on a protest/ complaint petition, as was held by the Hon’ble Supreme Court in Mahesh Chand vs. Janardhan Reddy and another (2003) 1 SCC 734 , as follows:- “12. There cannot be any doubt or dispute that only because the Magistrate has accepted a final report, the same by itself would not stand in his way to take cognizance of the offence on a protest/complaint petition; but the question which is required to be posed and answered would be as to under what circumstances the said power can be exercised. 5. Therefore, in view of above discussion, I find no merit in this petition as the same is totally misconceived and is accordingly dismissed.