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2015 DIGILAW 985 (PNJ)

Madhu Rani v. Prem Kumar

2015-05-21

DARSHAN SINGH

body2015
JUDGMENT : Darshan Singh, J. The present petition has been filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C) for setting aside the order dated 13.07.2005 passed by the Court of learned Sub-Divisional Judicial Magistrate, Dabwali in complaint case no. 149-1 of 2004, vide which the private complaint filed by the petitioner/complainant was dismissed and the order dated 06.07.2006 passed by the learned Additional Sessions Judge, Sirsa, vide which the revision petition filed by the petitioner has been dismissed. It has been further prayed that accused/respondents may be summoned to face trial for the offences punishable under Sections 323, 324, 452, 504, 506 read with Section 34 of Indian Penal Code. 2. The brief facts giving arise to this proceedings are that on 31.07.2004 at about 6.00.p.m, the petitioner/complainant Madhu Rani alongwith her son Monu @ Kala and Rajesh Kumar @ Babbu were sitting in their courtyard and were talking to each other. The accused/respondents tress-passed into their house and had come to take the possession thereof. Respondent no. 1 Prem Kumar said that they will take the possession of the house. Respondent no.5 Manish Kumar gave a Danda blow on the neck of Monu @ Kala. Respondent no.2 Madan Lal gave a Danda blow on the shoulder of her son. Respondent no.1 Prem Kumar hit on the left leg of her son Monu @ Kala with a screw driver. She tried to rescue her son Monu @ Kala then, respondent no.3 Gulzari Lal gave a Danda blow on her forehead and Prem Kumar hit her with a screw driver in the left side of her stomach. Mahender Kumar hit her twice with screw driver on her left arm. She raised alarm Mar dia' Mar dia' and then Karam Chand and Rajesh Kumar @ Babbu intervened to saved them. Otherwise they would kill them. While leaving the spot, the accused threatened them that today they have been saved, but they will kill them and left the place abusing them by the name of mother and sister. It is further pleaded that Prem Kumar fell on the ground, due to which he sustained injuries. Rattan Lai, the husband of the complainant who was present at his shop came to their house after incident and carried the complainant and her son to the Government Hospital, Dabwali, where they were medico-legally examined. It is further pleaded that Prem Kumar fell on the ground, due to which he sustained injuries. Rattan Lai, the husband of the complainant who was present at his shop came to their house after incident and carried the complainant and her son to the Government Hospital, Dabwali, where they were medico-legally examined. It is further pleaded that Bablu, the son of the complainant was illegally detained by the police. She gave an application on 02.08.2004. The Court called the report from the police and the police in-connivance with Prem Kumar registered a false case bearing FIR No. 145 dated 02.08.2008, under Sections 323, 324, 506, 34 of IPC. The motive for the occurrence is stated to be that the accused wanted to take the possession of the house, which had fallen to the share of the complainant. After getting the bail in the police case and obtaining the copies of their medico-legally reports, the complainant approached the police, but no action was taken. Hence the private complaint. 3. In order to prove the allegations, the complainant adduced her preliminary evidence. Learned Sub-Divisional Judicial Magistrate, Dabwali also called the report of the police under Section 202 Cr.P.C. 4. Learned Sub-Divisional Judicial Magistrate, Dabwali vide impugned order dated 13.07.2005 dismissed the complaint. The revision preferred by the petitioner against the order of learned Sub-Divisional Judicial Magistrate, Dabwali was also dismissed by the then learned Additional Sessions Judge, vide order dated 06.07.2006. 5. Aggrieved with the aforesaid order, the present petition under Section 482 Cr.P.C has been filed before this Court. 6. I have heard Ms. Anju Arora, Advocate learned counsel for the petitioner, Mr. P.K. Ganga, learned counsel for respondents no. 1, 2, 4 and 5 and have carefully examined the record of the case. 7. Initiating the arguments, learned counsel for the petitioner contended that petitioner Madhu Rani and her son Monu @ Kala were inflicted injuries by the respondents on 31.07.2004. They were medico-legally examined on the same day. Three injuries were found on the person of Madhu Rani and two injuries were found on the person of her son Monu @ Kala, which was evident from the statement of Dr. M.K. Bhaduas. She contended that on 02.08.2004 the police has illegally taken away the other son of the petitioner and wrongfully confined in the police station. The petitioner moved an application to the Judicial Magistrate, Dabwali. M.K. Bhaduas. She contended that on 02.08.2004 the police has illegally taken away the other son of the petitioner and wrongfully confined in the police station. The petitioner moved an application to the Judicial Magistrate, Dabwali. Copy of the same is Annexure P-1. Learned Magistrate sought the report of the police and in order to save its skin and in collusion with Prem Kumar a false police case was registered against the petitioner and her family members. 8. She further contended that in the preliminary evidence, the complainant, her son and Karam Chand, the witness of the occurrence have appeared and have fully supported the allegations in the complaint. But, after recording the preliminary evidence, the learned Magistrate adopted the illegal mode and sought the investigation report of the police under Section 202 Cr.P.C. She contended that once the Magistrate had initiated the inquiry himself under Section 202 Cr.P.C, he was not competent to call for the investigation report of the local police and the fate of the complaint should have been decided on the basis of the preliminary evidence. 9. She further contended that the learned Magistrate has totally relied upon the police report. Copy of the same is Annexure P-6 and dismissed the complaint. She contended that the police report was biased and was in collusion with Prem Kumar respondent no.1. She contended that the occurrence is not disputed. The injuries on the person of the petitioner and her son are proved from the medical evidence. The allegations for causing injuries to them are supported from the preliminary evidence. So, there was sufficient ground to summon the accused. She further contended that even the Revisional Court has not taken note of the preliminary evidence adduced by the complainant. Thus, she contended that the complaint filed by the petitioner has been wrongly dismissed by the learned Sub-Divisional Judicial Magistrate, Dabwali and the order passed by the learned Revisional Court is also illegal. 10. On the other hand, Mr. P.K. Ganga, Advocate, learned counsel for the respondents contended that infact the private complaint filed by the petitioner was a counter blast to the police case registered against them for causing injuries to Prem Kumar respondent no.1. 10. On the other hand, Mr. P.K. Ganga, Advocate, learned counsel for the respondents contended that infact the private complaint filed by the petitioner was a counter blast to the police case registered against them for causing injuries to Prem Kumar respondent no.1. He contended that the Magistrate is competent to seek the report of the police under Section 202 Cr.P.C in order to properly appreciate the preliminary evidence and to arrive at the just conclusion as to whether any ground is made out or not for summoning the accused. He further contended that taking into consideration the entire material, the learned Sub-divisional Judicial Magistrate, Dabwali has dismissed the complaint. The Revisional Court has also taken into consideration the entire material available on record. There is no illegality in the impugned orders. 11. The aforesaid contentions have been duly considered. 12. The main plea raised in the present petition before this Court by learned counsel for the petitioner is that once the inquiry was initiated by the learned Judicial Magistrate himself, he was not competent to call for the investigation report by the police under Section 202 Cr.P.C. The second limb of the contentions is that the complaint could not have been dismissed solely on the basis of the report under Section 202 Cr.PC. 13. This fact is not disputed that after recording the statement of the complainant and her witnesses, learned Judicial Magistrate has called for the investigation report from the police under Section 202 Cr.P.C. The copy of the said report is Annexure P-6. Section 202 Cr.P.C reads as under:- 202. 13. This fact is not disputed that after recording the statement of the complainant and her witnesses, learned Judicial Magistrate has called for the investigation report from the police under Section 202 Cr.P.C. The copy of the said report is Annexure P-6. Section 202 Cr.P.C reads as under:- 202. Postponement of issue of process (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200 (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks lit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant 14. The aforesaid provision of law provides that on receipt of complaint, the Magistrate may postpone the issue of process against the accused either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient grounds for proceedings. 15. 15. The aforesaid provisions nowhere provides that where the Magistrate has recorded the statement of the complainant and his/her witnesses, he is precluded to seek the investigation report under Section 202(1) Cr.P.C in order to arrive at the decision for the purpose of summoning of the accused or otherwise. 16. In case Mr. Bhagat Ram v. Surinder Kumar & Ors. 2004(11) SCC 622 , a complaint was filed before the Additional Chief Judicial Magistrate, Dehra after examining the complainant and his witnesses, the Magistrate directed the investigation to be done by the police and referred the matter for investigation/inquiry by the police. The said action of the learned Magistrate was challenged before the High Court on the ground that having once taken cognizance and proceeded to hold the inquiry under Section 202, Cr.P.C, could not have referred the matter for inquiry/investigation by the police at all and he should have proceeded in the matter himself. Exactly, these very contentions have been raised by the learned counsel for the petitioner before this Court. The High Court has allowed the netitinn and set aside the order passed by the learned Magistrate. Thereafter, the appeal by special leave was presented before the Hon'ble Apex Court. The Hon'ble Apex Court had laid down as under:- "4. It is clear from a perusal of he order made by the learned Magistrate that he has not done anything other than to comply with the provisions of Section 202(1) proviso (b), Code of Criminal Procedure, that after examining the complainant and his witnesses he found that it was necessary to further probe into the matter and, therefore, directed investigation to be done by the police and after the investigation was done by the police and on report being filed by them, he heard the matter afresh and directed issue of summons. We find that the Procedure adopted by the learned Magistrate is perfectly in order." 17. Dealing with the similar question of law, the Hon'ble Allahabad High Court in case Raj Kumar Adalkha and ors. We find that the Procedure adopted by the learned Magistrate is perfectly in order." 17. Dealing with the similar question of law, the Hon'ble Allahabad High Court in case Raj Kumar Adalkha and ors. v. State of U.P. and another, 2014(8) ADJ 410 has laid down that if after recording the evidence, the Magistrate finds it necessary for proper decision to find out the truth that inquiry/investigation is required by the police, then Magistrate is empowered under Section 202(1) Cr.P.C to issue such direction which is entirely different from the investigation on the direction issued under Section 156(3). 18. In view of the consistent rule of law laid down in the cases referred above, in order to arrive at truth for the purpose of deciding as to whether the accused are to be summoned or not even after recording the statement of the complainant and his/her witnesses the Magistrate can call for the report under Section 202 (1) Cr.P.C. So, there is no illegality in the procedure adopted by the learned Magistrate in the present case. 19. The summoning of a person as an accused in a criminal case is a serious matter. The Hon'ble Supreme Court in case M/s Pepsi Food Ltd v. Special Judicial Magistrate. 1997(4) R.C.R (Criminal) 781 has laid down as under: - "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in this complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the fats of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 20. The same principle of law has been laid down by this Court in case Arun Jha and another v. State of Haryana and another, 2006(1) R.C.R (Criminal) 300. 21. In view of the aforesaid ratio of law the Magistrate was not bound to set into the criminal law in motion simply because the petitioner has made the statement and has produced her evidence. Still the Magistrate was required to apply his judicial mind to the facts of the case and the material available on record. 22. There is no dispute with the proposition of law that the investigation report under Section 202 (1) Cr.P.C. alone can not be made a basis for the disposal of the complaint. At the same time the object of the investigation under Section 202 Cr.P.C is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as an accused from being called upon to face a frivolous complaint. Section 202 Cr.P.C. is, infact, an to enabling provision so as to empower the Magistrate to hold an effective inquiry into the truthfulness of the allegations made in the complaint for the purpose of arriving at a requisite satisfaction as to whether there is sufficient ground to proceed against the accused. Thus, the inquiry/investigation under Section 202 Cr.P.C is not a futile exercise and has to be taken into consideration by the Magistrate while deciding as to whether the process is to be issued or not. 23. This fact is not disputed that for this very occurrence a criminal case bearing FIR No. 145 dated 02.08.2004, under Sections 323, 324, 506 read with Section 34 of IPC was already registered on the statement of respondent no.1 Prem Kumar against the petitioner, her sons and husband. The copy of said FIR is Annexure P-3. 24. The investigating report dated 26.09.2004 (Annexure P-6) shows that the presence of accused Madan Lal and the witnesses of the complainant was not proved. The copy of said FIR is Annexure P-3. 24. The investigating report dated 26.09.2004 (Annexure P-6) shows that the presence of accused Madan Lal and the witnesses of the complainant was not proved. Even the place of occurrence was found to be the shop of Prem Kumar and not the house of the petitioner. The preliminary evidence adduced by the complainant was to be appreciated in the light of the investigation report and the same was rendered unreliable. There is nothing wrong in the observations of the learned Revisional Court that the complaint filed by the petitioner appeared to be a counter blast to the criminal case already registered against them at the instance of respondent no.1-Prem Kumar. 25. The extra ordinary jurisdiction under Section 482 Cr.P.C can only be exercised to prevent the abuse of process of law. This inherent jurisdiction is to be exercised sparingly and only when such exercise is justified. To support this view reference can be made to case Dr. Monica Kumar and another v. State of U.P. and others, 2008(8) S.C.C 781 . This extra ordinary power can not be resorted to avail the remedy of appeal or revision. The orders passed by the learned Courts below do not suffer from any material irregularity or illegality, which has resulted in the abuse of process of law. 26. Consequently, the impugned orders does not call for any interference by this Court while exercising the extra ordinary jurisdiction under Section 482 Cr.P.C. 27. Thus, the present petition is without any merits and the same is hereby dismissed.