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2018 DIGILAW 416 (HP)

Thakur Singh v. State Of Himachal Pradesh

2018-03-20

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —Since, by way of above captioned petitions, challenge has been laid by both the parties to the impugned order dated 2.2.2017, passed by learned Judicial Magistrate 1st Class, Manali, District Kullu, Himachal Pradesh, same are being taken up together for adjudication of the case with the consent of the parties. Moreso, the facts and parties to the lis are the same in both the cases. 2. Necessary facts, as emerge from the record are that respondent No.2, Rockey Singh( petitioner in Cr. MMO No.411 of 2017) filed a complaint under Section 156(3) of Code of Criminal Procedure (Annexure P-1) in the Court of learned Judicial Magistrate 1st Class, Manali, District Kullu, Himachal Pradesh, praying therein for registration of FIR against the petitioner namely Thakur Singh( petitioner in Cr.MMO No.1 of 2018) under Section 379 of Indian Penal Code and under Sections, 218, 323 and 506 of Indian Penal Code against respondent No.3, alleging therein that the petitioner Thakur Singh and respondent No.3 had stolen his scooter bearing registration No. HP-58-0892 from bus stand, Manali on 13.4.2015. Complainant further alleged that he had purchased the aforesaid scooter from the petitioner on 31.10.2014 and in this regard he had made full and final sale consideration, but despite that petitioner was reluctant in transferring the scooter in the name of the complainant. Allegedly, respondent No.2/ complaint lodged a complaint with the police, but no action was taken. Subsequently, on 6.5.2015 he was called by the police official to withdraw the complaint against the petitioner. On 1.6.2015, at about 9:30 PM, petitioner and respondent No.3 allegedly gave beating to respondent No.2/complainant. Taking cognizance of the averments contained in the aforesaid complaint filed by respondent No.2/complainant namely Rockey Singh, learned trial Court ordered for investigation, however fact remains that police after having conducted investigation filed cancellation report (available at page 46 of the paper book) . 3. Being aggrieved and dissatisfied with the cancellation report submitted by the Investigating Agency, complainant Rockey Singh filed objections to the cancellation report, which subsequently came to be upheld by the learned trial Court vide impugned order dated 2.2.2017. Learned trial Court while accepting the objections against the cancellation report, also ordered to treat the application filed by the complainant under Section 156(3) of Code of Criminal Procedure, as a private complaint. Learned trial Court while accepting the objections against the cancellation report, also ordered to treat the application filed by the complainant under Section 156(3) of Code of Criminal Procedure, as a private complaint. In the aforesaid background, petitioner namely Rockey Singh approached this Court by way of Cr.MMO No.411 of 2017 on the ground that once learned Magistrate had rejected the cancellation report, it had no option but to issue process against the accused and as such, learned court below had erred in directing the complainant Rockey Singh to adduce preliminary evidence in support of averments contained in his application. On the other hand, petitioner Thakur Singh against whom complainant Rockey Singh filed complaint, laid challenge to the impugned order by way of Cr. MMO No. 1 of 2018 on the ground that since police had deleted section 379 of IPC from the FIR, allegedly lodged against him, learned Magistrate had no authority to grant opportunity to complainant Roceky Singh to lead preliminary evidence, if any, against Thakur Singh. 4. Mr. Maan Singh, learned counsel representing the petitioner, while making this Court to travel through impugned order, strenuously argued that sole reason, which weighed heavily with the learned trial Court below while accepting the objections filed by respondent/complainant is/was non production of the record of challan, if any, of vehicle in question. While inviting attention of this Court to receipt (Annexure P-5) , issued by Chief Judicial Magistrate, Kullu, learned counsel contended that on 28th August, 2014, petitioner had deposited fine to the tune of Rs. 100/- on account of the challan of scooter bearing registration No.HP-58- 0892 and as such, impugned order being contrary to the material available on record deserves to be quashed and set-aside. He further contended that it stands duly proved on record that scooter is owned by the petitioner, who had admittedly agreed to sell the scooter to the respondent/complainant, but since he failed to get the registration done in his name, scooter remained in the name of the petitioner. Mr. Maan Singh, also invited attention of this Court to FIR, lodged at the behest of the complainant, to demonstrate that case, if any, against the petitioner was registered under Section 379 of IPC, which was subsequently deleted by the police. 5. Mr. Mr. Maan Singh, also invited attention of this Court to FIR, lodged at the behest of the complainant, to demonstrate that case, if any, against the petitioner was registered under Section 379 of IPC, which was subsequently deleted by the police. 5. Mr. Naveen K. Bhardwaj, learned counsel representing the respondent No.2/complainant, while opposing the aforesaid submissions having been made by learned counsel representing the petitioner, contended that respondent No.2/complainant had made full and final payment towards scooter agreed to be sold by the petitioner, but despite repeated requests, petitioner failed to get the registration done in his name. He further contended that it is not in dispute that the petitioner after having received full and final payment had handed over the scooter in question to the respondent/complainant and as such, there was no occasion for the petitioner to take the scooter without the consent of respondent/complainant. Mr. Bhardwaj, further contended that once learned Magistrate below had allowed the objection filed by the respondent/complainant to the cancellation report, he ought not have ordered to treat the application having been filed by him under Section 156(3) of Code of Criminal Procedure as a private complaint, rather he should have issued process against the petitioner Thakur Singh as well as respondent No.3. 6. I have heard learned counsel representing the parties and carefully gone through the record made available. 7. Close scrutiny of the material available on record, clearly suggest that scooter bearing registration No.HP-58-0892 belongs to petitioner namely Thakur Singh, who had agreed to sell the same to respondent/complainant. Since, the parties failed to get the registration done/changed in the name of the respondent complainant, who claims that he had paid entire amount towards consideration, scooter remained in the name of original owner Sh. Thakur Singh. It is a matter of record, as is evident from the material adduced on record that on 13.4.2015 when scooter was allegedly stolen, scooter was in the name of Thakur Singh. Similarly, there is no document produced on record by the respondent/complainant, suggestive of the fact that some purchase agreement was executed inter se the parties with regard to sale of aforesaid scooter and as such, by no stretch of imagination, it can be said that on 13th April, 2015 respondent/complainant had any authority to claim ownership of the scooter bearing registration No.HP-58-0892, which is still in the name of the petitioner Thakur Singh. 8. 8. Respondent/State in its reply in the present proceedings has categorically stated that as per registration certificate of stolen scooter, Sh. Thakur Singh (petitioner) son of Sh. Bhagat Ram, R/o village Pangan Phatti Pangan, Tehsil Manali, District Kullu, Himachal Pradesh, is the actual owner and accordingly Section 379 of IPC was deleted by the police. Since, the case against the petitioner was only registered under Section 379 of IPC, which was subsequently came to be deleted, as is evident from the reply filed by the Deputy Superintendent of Police, Kullu, District Kullu, Himachal Pradesh, there was no occasion for the learned court below to reject the cancellation report in as much it relates to case registered against the petitioner Thakur Singh under Section 379 of IPC is concerned. 9. As far as another contention put forth by Sh. Naveen K. Bhardwaj, learned counsel representing the respondent/ complainant (petitioner in Cr.MMO No.411 of 2017) that learned trial Court while accepting the objections having been filed by the respondent/complainant to the cancellation report, had no option but to issue process to the accused, also deserves to be rejected out rightly. Under Section 156(3) Code of Criminal Procedure, Magistrate while entertaining application, if any, filed by individual has an option to order investigation of the case by police, but definitely he is not bound to accept the report of the investigating agency, be it for cancellation of FIR or registration of the case, rather Magistrate while passing the order, if any, under section 156(3) , has to apply his/her mind and in case he/she is satisfied that no case is made out he/she shall order closure of the case. But similarly in case the Magistrate is not satisfied with the investigation carried out by the investigating agency, he/she can order applicant, who had filed application under Section 156(3) Code of Criminal Procedure to lead preliminary evidence in support of his allegations levelled against the petitioner-accused. In this regard reliance is placed upon the judgment passed by the Hon''ble Apex Court in M/s India Carat Pvt. Lted V. State of Karnataka and another , (1989) AIR(Supreme Court) 885, wherein it has been held as under:- "13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200. After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203. On the other hand if in his opinion there is sufficient ground for proceeding he may issue process under Section 204. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3) . When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2) . On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1) (b) and issue process straightway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued. 14. Since in the present case the Second Additional Chief Metropolitan Magistrate has taken cognizance of offences alleged to have been committed by the second respondent and ordered issue of process without first examining the appellant and his witnesses, the question for consideration would be whether the Magistrate is entitled. under the Code to have acted in that manner. The question need not detain us for long because the power of a Magistrate to take cognizance of an offence under Section 190(1(b) of the Code even when the police report was to the effect that the investigation has not made out any offence against an accused has already been examined and set out by this Court in Abhinandan Jha v. Dinesh Mishra , (1968) AIR(Supreme Court) 117 and H. S. Bains v. State , (1980) AIR(Supreme Court) 1883. In Abhinandan Jha v. Dinesh Mishra the question arose whether a Magistrate to whom a report under Section 173(2) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the Police. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3) and if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police, the Court observed that the Magistrate could take cognizance under Section ''190(1) (c) ''. The reference to Section 190(1) (c) was a mistake for Section 190(1) (b) and this has been pointed out in H. S. Bains . 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 is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1) (a) 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. 17. The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 158(3) , the police would have had to submit a report under Section 173(2) . Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 158(3) , the police would have had to submit a report under Section 173(2) . It has been held in Tula Ram v. Kishore Singh , (1977) AIR(Supreme Court) 2401 that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1) (b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with." 10. Aforesaid exposition of law laid down by the Hon''ble Apex Court, clearly suggest that on receipt of a complaint, Magistrate has several courses open to him. The Magistrate either may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200. After recording of those statements, if in the opinion of the Magistrate, there is no sufficient ground for proceeding, he/she may dismiss the complaint under Section 203. To the contrary, if in his/her opinion there is sufficient ground for proceeding he/she may issue process under Section 204. Another course open to the Magistrate is that instead of taking cognizance of offence and following the procedure laid down under Section 200 or Section 202, he/she may order an investigation to be made by the police under Section 156(3) . Pursuant to aforesaid order, police shall have to investigate and submit a report under Section 173(2) . On receiving of such report from the police, Magistrate may take cognizance of the offence under Section 190(1) (b) and issue process straightway to the accused. 11. Needless to say, Magistrate may exercise his powers in this regard irrespective of the view expressed by the police in their report whether an offence has been made out or not. On receiving of such report from the police, Magistrate may take cognizance of the offence under Section 190(1) (b) and issue process straightway to the accused. 11. Needless to say, Magistrate may exercise his powers in this regard irrespective of the view expressed by the police in their report whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceedings proceed under Section 200 by taking cognizance of the Offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued. 12. In the case at hand, learned Magistrate while disagreeing with the report submitted by the police under Section 173(2) , has called upon the complainant Rockey Singh to lead preliminary evidence in support of his allegations levelled against the accused person. As has been taken above, learned Magistrate is well empowered under Section 200 of Code of Criminal Procedure to call upon the complainant to lead preliminary evidence in support of the allegation, whereafter he/she may proceed to issue process or dismiss the complaint. In view of above, this Court finds no force much less substantial in the arguments, as has been taken note above, advanced by Mr. Naveen K. Bhardwaj, learned counsel representing the respondent/complainant. 13. Consequently, in view of the detailed discussion made hereinabove as well as law laid down by the Hon''ble Apex Court, Cr.MMO No.1 of 2018 filed by the petitioner namely Thakur Singh is allowed, as a consequences of which, cancellation report submitted by the Investigating Agency against the petitioner is accepted. As far as, another petition bearing Cr.MMO No.411/2017 filed by the complainant Rockey Singh (Respondent No.2 in Cr.MMO No.1 of 2018) is concerned, the same is dismissed. However, it is made clear that impugned order dated 2.2.2017, passed by the learned trial Court shall remain in force qua other accused namely Chaman Singh. Accordingly, the petitions are disposed of, alongwith pending application(s) , if any.