Jharkhand High Court
Lajpat Bhajanka vs The State Of Jharkhand on 25 February, 2020
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No.3826 of 2018
Lajpat Bhajanka, aged about 71 years S/o Late Kishori Lal, by
faith Hindu, by occupation businessmen, resident of Flat
No.802-B, Amrutkunj, Bhatar Road, P.O.- Surat, P.S.- Surat,
Surat (Gujrat) ... ... Petitioner
Versus
1. The State of Jharkhand
2. Prabhat Kumar Pandey S/o Late P. Pandey, Sakin - Tagore
Hill Road, Morabadi, P.O.- Ranchi University, P.S.-
Bariyatu, District Ranchi
... ...Opposite Parties
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CORAM:HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. S.K. Sharma, Advocate
: Mr. Abhay Prakash, Advocate
For the State : Mr. Pranay Kumar Jaiswal, A.P.P.
For the O.P. No.2 : Mr. Indrajit Sinha, Adv.
: Mr. Rajeev Kumar Sinha, Adv.
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12/25.02.2020 Heard Mr. S.K. Sharma, learned counsel appearing
on behalf of the petitioner.
2. Heard Mr. Indrajit Sinha, learned counsel appearing on behalf of the Opposite Party No.2.
3. Heard Mr. Pranay Kr. Jaiswal, learned A.P.P. appearing on behalf of the State.
4. This petition has been filed for the following relief:
"For quashing of the entire criminal proceeding arising out of Complaint Case no.1467/2012 titled as "Prabhat Kumar Pandey Vs. Lajpat Bhajanka", pending in the court of SDJM, Ranchi for the alleged offence under Section 406, 420, 467, 468 & 471 of Indian Penal Code including the order dated 26.03.2018, whereby cognizance of the offence has been taken against the petitioner for the offences under Sections 406/420 of the Indian Penal Code."
Arguments on behalf of the petitioner
5. Learned counsel for the petitioner submitted that initially, a Complaint Petition was filed bearing No.2746 of 2008 which 2 was sent to the police for investigation and after investigation of the case, final form was submitted showing that false case has been instituted against the petitioner. Pursuant thereto, notice was issued to the Informant and upon receipt of notice, the Complainant filed Protest-cum-Complaint Case No.1467 of 2012. He submitted that the learned court below, after examining the Complainant on solemn affirmation and also examining the enquiry witnesses, has taken cognizance of offence against the petitioner vide impugned order dated 26.03.2018 under Sections 406 and 420 of Indian Penal Code.
6. Learned counsel for the petitioner submitted that the learned court below while taking cognizance of offence has not taken into consideration the materials collected during investigation arising out of earlier Complaint Case No. 2746/ 2008, particularly the report of the hand writing expert which indicated that the handwriting on the disputed documents was not that of the petitioner.
The learned counsel also submitted that the Complainant while filing the protest petition has improved upon the allegation which was earlier levelled in Complaint Case No.2746 of 2008 and for this purpose, he has referred to Para-7 and 9 of the earlier Complaint Petition and has shown it in comparison with Paragraphs- 10 and 13 respectively of the present complaint petition.
7. Learned counsel has further submitted that while taking cognizance of offence against the petitioner, the learned court below has not recorded as to why the court was differing with the final report submitted in favour of the petitioner and therefore, the impugned order taking cognizance calls for interference.
8. Learned counsel has produced a copy of the order dated 04.08.2012 passed by the learned court below whereby upon receipt of the complaint petition, the learned court below has 3 treated the protest petition as a complaint. He submitted that due to inadvertence, this order has not been filed along with main petition. The aforesaid order dated 04.08.2012 has been perused by the learned counsel appearing on behalf of the opposite parties and they do not dispute that the order dated 04.08.2012 was passed by the learned court below whereby the protest petition was directed to be treated as a complaint. Considering this aspect of the matter, the aforesaid order dated 04.08.2012 passed by the learned court below and produced by the petitioner during the course of hearing, is directed to be placed in the records of this case.
9. Learned counsel has referred to Para-16 of the judgment passed by the Hon'ble Supreme Court in the case of Vasanti Dubey Vs. State of Madhya Pradesh (2012) 2 SCC 731 which is reproduced as under :
"16. On this occasion, when the Special-Judge refused to accept the closure report, it was his statutory and legal duty to either pass a fresh order taking cognizance, if he refused to dismiss the complaint and proceed with the enquiry under Section 200 Cr.P.C by examining the Complainant after which he had to record reasons why he disagreed with the closure report.
He further submitted that this exercise has not been undertaken by the learned court below and considering the aforesaid facts and circumstances of this case, the entire criminal proceedings including the order taking cognizance is fit to be set aside.
10. Learned counsel for the petitioner has also referred to a judgment passed by the Hon'ble Madras High Court in the case of A. Rajendra Vs. The State [CRL. OP. (MD) No.6998 of 2018] with other analogous cases and has referred to Para-10 thereof to submit that it has been held by Hon'ble Madras High Court that if the court wants to convert the protest petition into a private complaint, it is open to the court to do so, provided that 4 the court has considered the entire closure report filed by the police and has come to a conclusion that the materials placed by the de facto Complainant was not considered by the police or the de facto Complainant has come up with some further materials in order to substantiate his case. The learned counsel for the petitioner submitted that this exercise having not been done by the learned court below in the case arising out of the previous complaint case while converting the protest petition into the present private complaint and thereafter, taking cognizance on the subsequent complaint case, the entire proceedings arising out of the protest petition is illegal.
11. Learned counsel has also referred to another judgment dated 13.08.2019 passed by the Hon'ble Madras High Court in the case of Narayanamma and Ors. Vs. Chikka Venkateshaiahin CRL.O.P No.336 of 2015, Para-20 to submit that it has been held by Hon'ble Madras High Court that if the Magistrate wants to convert the protest petition into a private complaint, he has the jurisdiction to do so. However, at the time of taking cognizance, the learned Magistrate has to necessarily apply his mind on the closure report filed by the police and the statements recorded by the police during the course of investigation. The learned counsel for the petitioner submitted that his case is squarely covered by the aforesaid two judgments passed by the Hon'ble Madras High Court.
12. However, during the course of hearing and from perusal of the records of this case, it is not in dispute that the order dated 04.08.2012, by which the protest petition was converted into a complaint petition, is not under challenge in the present case. The petitioner has challenged the subsequent order dated 26.03.2018 by which cognizance was taken against the petitioner after examining the Complainant on solemn affirmation and after examining the enquiry witnesses.
5Arguments of the Opposite Party No.2
13. Learned counsel appearing on behalf of the Opposite Party No.2, on the other hand, submitted that the petitioner has admittedly not challenged the order dated 04.08.2012 passed by the learned court below by which the protest petition was converted into a complaint case and the office was directed to register the protest petition as complaint case and the matter was posted for the solemn affirmation of the Complainant. He submitted that in absence of challenge to order dated 04.08.2012, the legality and validity of the said order may not be entered into. He submitted that the judgment passed by the Hon'ble Madras High Court in the case of A. Rajendra Vs. The State [CRL. OP. (MD) No.6998 of 2018] (supra) does not apply to the present case as in the case before Hon'ble Madras High Court, both the orders i.e. the order by which the protest petition was treated as a complaint, as well as the subsequent order, by which cognizance was taken, were under challenge, but in the present case, the order by which the protest petition was treated as a complaint case is not under challenge, rather only the order taking cognizance is under challenge. Similarly, in the other judgment of Hon'ble Madras High Court which has been relied upon by the petitioner i.e. Narayanamma and Ors. Vs. Chikka Venkateshaiahin CRL.O.P No.336 of 2015 also, the order by which the protest petition (arising out of closure report of investigation under FIR) was converted into a private complaint was under challenge. In the instant case, such order is not under challenge and the petitioner has only challenged the order taking cognizance.
14. The learned counsel while referring to the judgment which has been relied upon by the petitioner and reported in (2012) 2 SCC 731 (supra) has submitted that the judgment has to be read as a whole and Para-16 of the judgment has to be read along with Paragraph Nos. 20, 21 and 27 to 29. He submitted 6 that once the closure report is filed, the informant/Complainant is to be noticed and at best, he is to be examined under Section 200 of Cr.P.C.. This exercise is undertaken only to assist the court to take a decision on the closure report, but once the court converts the protest petition into a complaint case, then a fresh proceeding starts and there is no question of referring to any material which has been collected during investigation by the police and the procedure prescribed for the complaint case under Section 200 of Cr.P.C onwards is to be taken care of. Learned counsel submitted that on the one hand, the petitioner has not challenged the order dated 04.08.2012 by which the protest petition was converted into a complaint case, and on the other hand, the procedure having been followed by the learned court below under Section 202 of Cr.P.C, there is no scope for the petitioner to say that the materials collected during investigation by the police is to be taken care of. Learned counsel for the Opposite Party No.2 has relied upon a judgment passed by Hon'ble Supreme Court reported in (2019) 8 SC,C 27 (Vishnu Kumar Tiwari Vs. State of Uttar Pradesh) Paras-42 and
46.
15. The learned counsel further submitted that otherwise also, if the protest petition is taken into consideration, it appears that the protest petition was itself in the nature of a fresh complaint, in as much as, there was no such prayer made in the protest petition not to accept the final form which was filed by the police and the protest petition had all the ingredients of a fresh complaint case. It specifically named the various accused persons, the place of occurrence and all necessary details for treating the protest-cum-complaint case filed by the Complainant as a fresh case. Learned counsel submitted that once a fresh case is registered as complaint case, there is no occasion to refer to the materials collected during investigation which formed part of the earlier criminal proceedings whereby 7 the closure report was submitted by the police. The learned counsel also submitted that there is no concept of res judicata, so far as criminal case is concerned. Learned counsel has also submitted that there is no material difference between the statements made in the earlier complaint case and present one and even if it is assumed that there is some difference, the same has to be considered at the time of cross-examination of the Complainant at proper stage before the learned court below. Learned counsel submitted that the impugned order of cognizance does not call for any interference. Findings of this Court
16. In the judgment passed by the Hon'ble Supreme Court reported in (2012) 2 SCC 731 (supra),which has been relied upon by the petitioner, the issue before the Hon'ble Supreme court is mentioned in Para-2 as follows: -
"2. In .......... whether the Magistrate/Special Judge could straightaway direct for submission of charge-sheet in case he refused to accept final report/closure report of the police/investigating agency and thereafter direct the police to submit charge-sheet in case he was of the opinion that the case was not fit to be closed and it required to be proceeded further? The question which also requires consideration is: whether the Special Judge could refuse to accept closure report and direct reinvestigation of the case for the second time in order to proceed further although he was confronted with the legal impediment indicating lack of sanction for prosecution in the matter?"
In Para-16 of the said judgment, the Hon'ble Supreme Court has clearly indicated that upon filing of closure report, the Complainant may file his protest petition and is required to be examined under Section 200 of Cr.P.C.. This Court is of the considered view that examination of the Complainant under Section 200 of Cr.P.C is only for the purposes of assisting the court as to whether closure report is to be accepted or not. This 8 Court also finds that as per Para 21 of the said judgment, the Hon'ble Supreme Court has clearly held the courses which are open to the Magistrate once closure report is submitted. It has been held that the Magistrate has two options (i) He may not agree with the police report and direct an enquiry under Section 202 of Cr.P.C. after such enquiry take action under Section 203 of Cr.P.C. (ii) He is also entitled to take cognizance under Section 190 of Cr.P.C at once, if he disagrees with the adverse police report. The Hon'ble Supreme Court in Para-20 of the said judgment reported in (2012) 2 SCC 731 (supra) has interalia referred to the judgment passed by the Hon'ble Supreme Court in the case of H.S. Bains Vs. State (UT of Chandigarh). Para-20 of the judgment reported in (2012) 2 SCC 731 (supra) is reproduced herein below for ready reference:
"20. This position has been further reiterated and reinforced in a recent judgment of this Court delivered in Ram Naresh Prasad v. State of Jharkhand, wherein it has been held that when the police submitted a final report of the investigation of the case which in colloquial term is called "closure report", the Magistrate cannot direct the police to submit the charge-sheet. However, on the basis of the material in the charge-sheet, he may take cognizance or direct further investigation. In fact, this position is clearly laid down under Section 190 read with Section 156 CrPC itself and the legal position has been time and again clarified by this Court in several pronouncements viz. in H.S. Bains v. State (UT of Chandigarh) wherein Their Lordships have summarised the position as follows:
"1. When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3) ante;
2. Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps:
(i) If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the complaint.
(ii) He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, 9 under Section 190(1)(a) and proceed to examine the Complainant under Section 200.
(iii) Even if he disagrees with the police report, he may take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such enquiry take action under Section
203. However, when the police submitted a final report or closure report in regard to a case which has been lodged by the informant or Complainant, the Magistrate cannot direct the police to straightaway submit the charge-sheet as was the view expressed in Abhinandan Jha which was relied upon in Ram Naresh Prasad."
17. Learned counsel for the Opposite Party No.2 has rightly relied upon the judgment passed by Hon'ble Supreme Court reported in (2019) 8 SCC 27 wherein at Paras- 42 and 46, it has been held as under:
"42. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Sections 200 and 202 of the Code if the latter section also commends itself to the Magistrate. In other words, necessarily, the Complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the Complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the investigating officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the Complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we 10 are of the view that in the facts of this case, we cannot support the decision of the High Court.
46. If a protest petition fulfils the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or is liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections of the second respondent against the final report."
18. It has been clearly held that if a protest petition fulfills the requirement of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code.
19. The sequence of events in the present case challenging the order taking cognizance passed in Complaint Case No. 1467/2012 are as follows: -
a. Initially a Complaint Case No.2746 of 2008 under Section 406, 420, 467, 468, 471 of IPC was filed by the Complainant which was sent to the police for investigation and the police filed a closure report. b. Notice was issued to the Complainant and the Complainant filed a Protest-cum-Complaint Petition. In the Protest-cum-Complaint Petition, interalia, a specific prayer was made by the Complainant to register the protest petition as a complaint case and to issue summons to the accused. It was interalia alleged that the investigation by the police in the investigation arising out of Complaint Case No.2746 of 2008 was perfunctory. c. The learned court below passed order dated 04.08.2012 wherein the submissions were recorded and it was found that the protest petition had all the basic ingredients for 11 treating the said protest petition as a complaint case and passed an order to treat the protest petition as a complaint. By the same order, the office was directed to register the protest petition as a Complaint Petition and the matter was posted for the solemn affirmation of the Complainant. This Court finds that the order dated 04.08.2012 has not been challenged by the petitioner, rather this order was not even been annexed alongwith the main petition and has been produced by the learned counsel for the petitioner during the course of arguments which has been directed to be kept with the records of this case.
d. As per the law laid down by the Hon'ble supreme court in the case of H.S Bains -versus- State reported in (1980) 4 SCC 631 Para-6, upon receipt of the closure report in the investigation by police arising out of Complaint Case No. 2746/2008, it was open to the learned court below to take cognizance of the offence under Section 190(1)(a) of Cr.P.C. on the basis of the original complaint and proceed to examine the Complainant and his witnesses under Section 200 Cr.P.C.
However, the learned court below vide order dated 04.08.2012, instead of proceeding with the original Complaint Case No. 2746/2008, directed to register the protest petition as a complaint case which was registered as Complaint Case No. 1467/2012.
e. After examination of the Complainant and the enquiry witnesses in Complaint Case No. 1467/2012, cognizance was taken by the learned court below under Sections 406/420 of IPC only by the impugned order considering the statements made by the Complainant and the enquiry witnesses made under the proceedings arising out of Complaint Case No. 1467/2012.
1220. This Court is of the considered view that under the aforesaid circumstances, once the protest petition has been treated and registered as a separate complaint case pursuant to order dated 04.08.2012 by the learned court below, then such complaint case has to be treated as a fresh case and the learned court below, at the stage of taking cognizance of offence, has to take into consideration only the materials which come up in the solemn affirmation of the Complainant and the enquiry witnesses in Complaint Case No. 1467/2012 and the materials collected during investigation arising out of earlier Complaint Case No. 2746/2008 cannot be taken into consideration while passing order in Complaint Case No. 1467/2012. The contention of the petitioner that the learned court below ought to have taken into consideration the materials collected during investigation arising out of the earlier Complaint Case No. 2746/2008, is not at all sustainable in the eyes of law. This Court is of the considered view that upon receipt of the closure report, it was certainly open to the learned court below to proceed with the original Complaint Case No. 2746/2008, examine the Complainant and the witnesses and still take cognizance of offence, but this never happened in this case. Once the learned court below vide order dated 04.08.2012 directed to treat the protest petition as a complaint case and registered the same as separate Complaint Case No. 1467/2012 and proceeded to examine the Complainant and enquiry witnesses under Section 200 of the Cr.P.C, the same has to be treated as a distinct case and there was no occasion for the learned court to revert back to the materials collected during investigation arising out of Complaint Case No. 2746/2008.
21. In aforesaid view of the matter, there is no merit in the arguments of the petitioner that the learned court below should have considered the materials collected during investigation arising out of Complaint Case No. 2746/2008 while passing the 13 impugned order arising out of Complaint Case No. 1467/2012. Further, admittedly, the order dated 04.08.2012, by virtue of which Complaint Case No. 1467/2012 was registered, is not under challenge.
22. In the present case, once the Magistrate vide order dated 04.08.2012 had decided to treat the protest petition as complaint petition, registered the same as separate Complaint Case No. 1467/2012 and proceeded under Section 200 of Cr.P.C and other subsequent sections, the present proceeding has to be necessarily treated as a distinct proceeding and the materials collected in the present proceeding has only to be taken into consideration for the purpose of arriving at a conclusion as to whether prima facie case is made out against the petitioner or not. The Complainant as well as the enquiry witnesses were examined and cognizance was taken vide the impugned order dated 26.03.2018 under Sections 406/420 of IPC only on the basis of enquiry conducted in Complaint Case No. 1467/2012. Accordingly, the contention of the petitioner that the learned court below ought to have referred to the materials collected during investigation while taking cognizance of the offence is devoid of merit and accordingly, such contention is hereby rejected.
23. So far as the judgments passed by the Hon'ble Madras High Court and relied upon by the petitioner are concerned, the same do not apply in the facts and circumstances of this case as in those cases both the order by which the protest petitions were converted into a private complaints as well as the order taking cognizance in the protest petition, were under challenge and in the present case, only the order taking cognizance in the subsequent complaint case arising out of protest petition is under challenge and the earlier order dated 04.08.2012 by which a separate complaint was directed to be instituted pursuant to the protest petition, is not under challenge.
1424. So far as the contention of the petitioner that there is an improvement made in the Complaint Case No. 1467/2012 as compared to the allegations made in the earlier Complaint Case No. 2746/2008 is concerned, this Court is not inclined to make any pronouncement on the same as the same itself would be a subject matter of consideration at appropriate stage before the learned court below.
25. Considering the aforesaid facts and circumstances of the case, this Court does not find any merit in the present criminal miscellaneous petition which is accordingly dismissed.
26. However dismissal of this case will not prejudice the case of the parties before the learned court below in any manner whatsoever.
27. Pending interlocutory applications, if any, are dismissed as not pressed.
28. Office is directed to communicate this order to the learned court below immediately.
(Anubha Rawat Choudhary, J.) Saurav/