Rajasthan High Court - Jaipur
Thanchand And Ors. vs State Of Rajasthan And Anr. on 25 March, 1998
Equivalent citations: 1998CRILJ3700, 1998(3)WLC521, 1998(1)WLN287
ORDER Amaresh ku. Singh, J.
1. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the non-petitioner No. 2.
2. By his order dated 26th March, 93, the Additional Chief Judicial Magistrate. Bali after perusing the final report submitted by the police and taking into consideration the statement of the complainant took cognizance of the offences Under Sections 466, 474 and 120B, IPC and directed the issue of non-bailable warrants of arrest against 11 persons, who were named in the complaint filed by the non-petitioner No. 2. A revision was filed by the petitioners against the above mentioned order, but the same was dismissed by the Additional Sessions "Judge, Bali, Feeling aggrieved by both the orders, the petitioners have filed this petition under Section 482, Cr.P.C. and prayed for setting aside of the orders of the Courts below and dropping of the proceedings, which were initiated against them.
3. The facts of the case so far as they are relevant for the disposal of this petition may be summarised as below :
On 23rd July, 82 non-petitioner No. 2 filed a complaint in the Court of Additional Chief Judicial Magistrate, Bali alleging the commission of forgery in certain record. The complaint was sent to the Station House Officer of the Police Station, Bali for investigation. The Station House Officer of the Police Station, Bali registered a case and after, investigation submitted a final report. After perusing the final report, the Additional Sessions Judge, Bali directed the police to conduct further investigation in the case.
4. Without ascertaining as to what was the result of further investigation in the above mentioned case, the non-petitioner No. 2 on the same facts filed another complaint in the Court of Additional Chief Judicial Magistrate, Bali on 16-1 -90. In that complaint, it was mentioned that on the same facts a complaint had been filed in 1982 and that was sent to the police for investigation. The Additional Chief Judicial Magistrate called for a report from the S.H.O. of the Police Station. Bali presumably is 210 Cr.P.C. The report was not sent and without further waiting for the report, the Additional Chief Judicial Magistrate gave an order under Section 156(3), Cr.P.C. to the S.H.O. of the Police Station to register a case and investigate it. As aconsequece of the order passed by the Additional Chief Judicial Magistrate, Bali, the police registered another case on the basis of complaint dated 16th January, 90 and after investigation again submitted a final report.
5. The complainant non-petitioner No. 2 filed a protest petition. The learned Additional Chief Judicial Magistrate, Bali recorded the statement of the complainant and after taking into consideration the papers on the police file and the statement of the complainant, directed the issue of bailable warrants of arrest against 11 persons vide his order dated 26 th March, 93. A revision petition was filed against the above order, but the same was dismissed by the Additional Sessions Judge, Bali.
6. The main contention of the learned counsel for the petitioners is that the order dated 26 th March, 93 passed by the Additipnal Chief Judicial Magistrate is without jurisdiction as it was passed in contravention of Section 210, Cr.P.C. The arguments advanced by the learned counsel for the petitioners is that it was brought to the notice of the Additional Chief Judicial Magistrate that the' criminal case registered at P.S., Bali on the basis of the first complaint dated 23-7-82 was being investigated by the police as further investigation had been ordered and the result of the investigation was not known, it was necessary for the Additional Chief Judicial Magistrate to have waited for the report of the police officer of the Police Station before passing any order and since this was not done and another order under Section 156(3), Cr.P.C. directing the police to register a case on the basis of the second complaint dated 16th January, 93 was passed, the order dated 20th September, 91 directing investigation was without jurisdiction and therefore, the second investigation conducted by the police in pursuance of the above order was also Without jurisdiction. It is further submitted by the learned counsel for the petitioners that after the submission of the final report after conducting second investigation, the Additional Chief Judicial Magistrate took cognizance of the offences on 26th March, 93 without waiting for the report of the police about the result of first investigation conducted by them in the case registered on the basis of complaint dated 23rd July, 82 and therefore, the order of taking cognizance on 26th March, 93, the examination of the complainant under Section 202 and the issue of process against the accused persons under Section 204 were extend utter disregard of Section 210, Cr.P.C. and therefore, the impugned order and the proceedings initiated by that order are ab initio void and amount to abuse of the process of the Court. It is further submitted by him that the learned Additional Chief Judicial Magistrate has not given any reasons for issuing process against as many as 11 persons and therefore, it cannot be said that the Additional Chief Judicial Magistrate was satisfied that there were sufficient grounds to proceed against 11 persons.
7. The learned Public Prosecutor and the learned counsel for the non-petitioner No. 2 have supported the orders of the Courts below and prayed for the dismissal of this petition.
8. I have carefully considered the arguments advanced by both the parties. It is an admitted case of the parties that on the basis of the first complaint dated 23rd July, 82, the police had registered a case and after investigation submitted a final report and after perusing the final report, further investigation was directed by the Court. In view of this position, it must be said that the investigation in the above mentioned case was pending on 16th January, 90, the date on which the second complaint was filed.
9. It is well established that on the same facts, the police cannot register a second case, if it is brought to its notice that on an earlier occasion a case has already been registered and that was either under investigation or had already been investigated. When it was brought to the notice of the Additional Chief Judicial Magistrate that a criminal case has already been registered on the basis of the first complaint and investigation was being conducted in that case, there was no justification for making an order for registering another case on the basis of the/second complaint dated 16th January, 90. In any case, the second investigation directed by the Additional Chief Judicial Magistrate could not be done independently of the investigation of the first case. I, therefore, find sufficient force in the submission of the learned counsel for the petitioners that the order dated 20th September, 91 passed by the Additional Chief Judicial Magistrate, Bali directing the investigation under Section 156(3), Cr.P.C. was not proper.
10. There is sufficient force in the submission that for all purposes, it was the first investigation, which was material and therefore, under Section 210, Cr.P.C. it was necessary for the Magistrate to call for the record from the S.H.O. of the Police Station and in fact the Additional Chief Judicial Magistrate had called such report, as is obvious by the facts narrated in the petition. So far as the act of taking cognizance under Section 190(1)(a), Cr.P.C. is concerned, the submission that taking of cognizance was in contravention of Section 210, Cr.P.C. is not correct. Section 210, Cr.P.C. does not prohibit the Court from taking cognizance under Section 190(1)(a), Cr.P.C. The mandate of Section 210 is that if it is brought to the notice of the Court that an investigation is pending, then the Court shall stay the proceedings and call for a report. Therefore, the Additional Chief Judicial Magistrate, Bali had the jurisdiction to take cognizance of the offences under Section 190(1)(a), Cr.P.C. but he was under a statutory obligation to stay the inquiry, which was to be conducted under Section 200 and 202, Cr.P.C. In the instant case, the learned Additional Chief Judicial Magistrate did not stay the inquiry, which was initiated by him by taking cognizance of the offences under Section 190(1)(a), Cr.P.C. without calling the report of the police regarding the result of the first investigation, the Additional Chief Judicial Magistrate proceeded to examine the complainant and pass the impugned order dated 26th March, 93 in contravention of Section 210, Cr.P.C. Therefore, the examination of the complainant under Section 200 and the order directing issuance of non-bailable warrants of arrest against 11 persons presumably under Section 204, Cr.P.C. were in contravention of Section 210, Cr.P.C. and were therefore without jurisdiction.
11. For the reasons mentioned above, the petition deserves to be allowed and is hereby allowed. The order dated 26th March, 93 passed by the Additional Chief Judicial Magistrate, Bali in Criminal Case No. 111/93 and the order dated 23rd April, 93 passed by the Additional Sessions Judge in criminal revision No. 26/93 are hereby quashed and set aside. The Additional Chief Judicial Magistrate, Bali is hereby directed to call a report from the S.H.O. of the Police Station, Bali about the result of the first investigation, which was conducted in the case registered on the basis of the first complaint dated 23rd July, 82 and after receiving the report of the police proceed in accordance with law.
12. For the removal of doubts, it is hereby made clear that the order dated 26th March, 93 has been quashed and set aside against 11 accused persons, because the order which is illegal and without jurisdiction is a nullity and must be quashed and set aside, even if some accused persons have not approached this Court for any relief. A copy of this order be sent to the Additional Chief Judicial Magistrate for information and necessary action.