Rajasthan High Court - Jaipur
Smt Manohari Devi And Ors vs State Of Raj And Anr on 1 August, 2019
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 5950/2017
1. Smt Manohari Devi W/o Late Sh. Shivji Ram Sharma Aged 86
years.
2. Kamal Kumar Sharma S/o Late Sh. Shivjiram Sharma Aged
56 years.
3. Smt. Kiran Devi W/o Kamal Kumar Sharma aged about 51
years B/c Bagda Brahman R/o Sharma Bhawan Deedwana
Chowk Kuchaman City Distt. Nagaur Raj.
4. Jhumar Mal S/o Late Sh. Shivji Ram Sharma Aged about 61
years B/c Bagda Brahman R/o Silaptar Distt. Assam.
5. Vijay Kumar S/o Mohan Lal aged about 59 years B/c Bagda
Brahman R/o Heerapura Teh. Capren Distt. Bundi Raj.
6. Anand Singh S/o Kalyan Singh B/c Rajput Aged 57 years R/o
Kuchaman City Distt. Nagaur Raj.
Accused-Petitioners
Versus
1. State Of Raj. Through PP.
----Respondent
2 Gopal Lal Sharma S/o Late Sh. Shivji Ram Sharma Aged about 59 years B/c Bagda Brahman R/o 24 Hanuman Enclave Ganga Bihar Colony Sirsi Mod Police Thana Bhankrota Jaipur Complainant/Respondent For Petitioner(s) : Mr. Hanuman Sharma For State : Mr. Mangal Singh Saini, PP For Complainant(s) : Mr. Rahul Sharma HON'BLE MR. JUSTICE PANKAJ BHANDARI Judgment / Order 01/08/2019
1. Matter comes upon an application moved for vacation of stay. With consent of parties, matter is taken up for final disposal.
2. Petitioners have preferred this Criminal Miscellaneous Petition aggrieved by order dated 23.08.2017 whereby Magistrate has sent the matter for investigation under Section 202 Cr.P.C. (Downloaded on 29/08/2019 at 09:54:03 PM)
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3. It is contended by counsel for the petitioners that a complaint was lodged by the Complainant-Respondent No.2 which was referred by the Magistrate to the Police under Section 156(3) Cr.P.C. Police submitted negative final report on the ground that it is not having territorial jurisdiction.
4. It is contended that thereafter a Protest Petition was filed by the complainant and the Court recorded the statement of the complainant and his witnesses, thereafter, placing reliance on "Rasiklal Dalpatram Thakkar vs. State of Gujarat" (Criminal Appeal No.2041/2009) decided by Hon'ble Apex Court on 06.11.2009, sent the matter to the Police under Section 202 Cr.P.C. for investigation.
5. It is contended that judgment relied on by the Court below was not applicable to the facts of this case, as in this case Court had proceeded to record statement under Section 200 & 202 Cr.P.C., hence, the Magistrate had no jurisdiction to send the matter for investigation under Section 202 Cr.P.C.
6. Counsel for the petitioners has placed reliance on "Mst. Laxma & Ors. vs. Jagdish & Anr. 2013(2) RCC (Raj.) Page 654" & "Bhushan Prakash vs. State of Rajasthan & Ors. 2007(1) RCC Page 325."
7. Counsel for the complainant has opposed the Criminal Miscellaneous Petition. It is contended that Police submitted negative final report on the pretext that it was not having territorial jurisdiction.
8. It is also contended that when once a complaint is sent by Magistrate to Police under Section 156(3) Cr.P.C., it has to investigate the case and it cannot submit negative final report on the ground that it is not having territorial jurisdiction. Reliance in (Downloaded on 29/08/2019 at 09:54:03 PM) (3 of 4) [CRLMP-5950/2017] this regard has been placed on "Rasiklal Dalpatram Thakkar vs. State of Gujarat" (supra).
9. I have considered the contentions.
10. It is not in dispute that complaint was lodged by the complainant which was sent to the Police under Sub-Section (3) of Section 156 Cr.P.C. It is also not in dispute that negative final report has been submitted by the Investigating Officer on ground that offence did not take place within his territorial jurisdiction.
11. Prior to passing the order dated 23.08.2017, statements of witnesses and the complainant were recorded on 11.05.2017 under Section 200 & 202 Cr.P.C.
12. The terminology used in Section 202 Cr.P.C. is that on receipt of a complaint, Magistrate can either inquire into the case himself or direct an investigation to be made by a Police Officer, for the purpose of deciding whether or not there is sufficient ground for proceeding. If a Magistrate chooses to inquire into the case himself, then he cannot direct investigation by a Police Officer, as the word "or" has been interpreted by the Courts to mean that the course available to the Magistrate is either to inquire himself or direct the investigation.
13. In "Bhushan Prakash vs. State of Rajasthan & Ors. (supra) and "Mst. Laxma & Ors. vs. Jagdish & Anr." (supra). Magistrate had recorded the statement of the complainant and his witnesses under Section 200 & 202 Cr.P.C. It was held by Rajasthan High Court that Magistrate cannot direct the Police to investigate under Section 156(3) Cr.P.C. Magistrate in this case has not adhered to the two procedures and after recording statement of complainant and his witnesses had issued directions (Downloaded on 29/08/2019 at 09:54:03 PM) (4 of 4) [CRLMP-5950/2017] to the Investigating Officer to investigate and submit report to the Court. Such procedure is contrary to law.
14. The judgment referred to by the counsel for the complainant was a case where a complaint was sent to the Police for investigation under Section 156(3) Cr.P.C. It was held that when a complaint is sent by the Magistrate for investigation under Section 156(3) Cr.P.C., Police cannot submit report that it lacks territorial jurisdiction, as it was observed that Section 156(3) Cr.P.C. did not restrict the jurisdiction of the Investigating Agency to investigate into a complaint. It was for the Court to decide whether it had jurisdiction to entertain the complaint as and when the entire facts were placed before it.
15. However, in the present case, after the report was submitted by the Police that it is not having territorial jurisdiction, Magistrate permitted the complainant to file Protest Petition and on filing of the Protest Petition, proceeded to record statement of the complainant and his witnesses, thereby, he commenced investigating the case, as per Section 202 Cr.P.C. which he could not in view "Bhushan Prakash vs. State of Rajasthan & Ors." (supra)
16. In view of the above, the order of the Court below whereby it has sent the matter to the Police for investigation under Section 202 Cr.P.C., deserves to be quashed. Matter is referred back to the Magistrate to proceed in accordance with law.
17. Stay application stands disposed.
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