Punjab-Haryana High Court
Sukhwinder Kaur vs Kulwinder Singh And Anr. on 9 August, 2003
Equivalent citations: (2004)136PLR93
JUDGMENT M.M. Kumar, J.
1. This petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity 'the Code') challenges the order dated 28.8.2003 passed by the Sub Divisional Judicial Magistrate, Samrala directing the S.H.O. of Police Station, Samrala to submit his report after investigation on or before 6.1.2004.
Brief facts:
2. Petitioner has filed a complaint against respondent Nos. 1 to 5 leveling allegations of demand of dowry and mis-appropriation of Istri Dhan. It was further alleged that the allegations constitute commission of offences under Sections 406/498A read with Section 34 IPC. According to the petitioner, respondent No. 1, Kulwinder Singh was married to her by performing Anand Karaj ceremony at Samrala according to Sikh rites on 28.9.1992. Both of them started living as husband and wife at matrimonial home at Gali No. 7, Harcharan Nagar, Ludhiana. The articles forming part of Istri Dhan were entrusted to respondent Nos. 1 to 4. It is further alleged that she was turned out of the matrimonial home in three clothes in December, 1993 when she was carrying two months old pregnancy. On 9.7.1994 a male child was born to the petitioner-complainant. However, she was taken back to the matrimonial home in 1994. Further allegations of demand of dowry to the tune of Rs. 1,50,000/- were made for reconstruction of the house by the respondents. The petitioner-complainant has alleged that she has been turned out of the matrimonial home time and again. The matter was reported to the police but the police did not entertain the complaint and advised the petitioner-complainant to approach the Court. On 7.8.2001, she filed a complaint before the Sub Divisional Judicial Magistrate who registered the complaint and adjourned the same for 6.9.2001 for recording of preliminary evidence of the petitioner-complainant. Statements of four persons including the petitioner-complainant have been recorded and the preliminary evidence was closed. On 29.8.2003, the Magistrate passed the following order:
"Complainant closed evidence. Before proceeding further I am of the considered view that report of SHO be called. SHO PS Samrala is directed to submit his report after investigation on or before 6.1.2004."
3. Shri G.S. Bhatia, learned counsel for the petitioner-complainant has argued that once the Magistrate has recorded statements of witnesses produced by the petitioner-complainant under Section 200 of the Code then there was no jurisdiction with her to make a reference to the police by invoking the provisions of Section 156(3) of the Code. According to the learned counsel, the Magistrate has already taken cognizance by recording preliminary evidence and it was her duty to issue process to the accused. According to the learned counsel, the procedure adopted by the learned Magistrate is without jurisdiction and, therefore, the order is liable to be set aside with a direction to her to issue the process. In support of his submission the learned counsel has placed reliance on a judgment of the Karnataka High Court in the case of Mahesh Kumar v. State of Karnataka, 2003(1) R.C.R. (Crl.) 363.
4. I have thoughtfully considered the submissions made by the learned counsel and am of the view that the order passed by the Magistrate does not suffer from any jurisdictional, procedural or any other legal error. Under Section 202 of the Code, the issuance of process can be postponed by the Magistrate and there is ample power given to him to direct investigation to be made by the police officer. Section 202 of the Code 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 offences complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complaint 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 fit, take evidence of witnesses 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 Court on an officer in charge of a police station except the power to arrest without warrant."
5. A perusal of the aforesaid provision would show that the Magistrate can postpone the issuance of process against the accused in case of he feels the necessity of enquiring into the case himself or direct the investigation to be made by a police officer with the object to reach a conclusion that there exists sufficient ground for issuance of a process.
6. The question whether the order passed by the Magistrate after recording preliminary evidence of the petitioner-complainant under Section 200 of the Code could be considered as a one passed under Section 156(3) or Section 202 of the Code came up for consideration of the Supreme Court in the case of Jamuna Singh v. Bhadai Shah, A.I.R. 1964 S.C. 1541. While rejecting the argument that such an order is without jurisdiction their Lordships in para 15 observed as under:
"As a last resort the learned counsel for the appellants argued that the Magistrate had acted without jurisdiction in asking the police to institute a case and so the proceedings subsequent to that order were all void. As we have already pointed out, the order of the Magistrate asking the police to institute a case and to send a report should properly and reasonably be read as one made under Section 202 of the Code of Criminal Procedure. So, the argument that the learned Magistrate acted without jurisdiction cannot be accepted. At most it might be said that in so far as the learned Magistrate asked the police to institute a case he acted irregularly. There is absolutely no reason, however, to think that irregularity has resulted in any failure of justice. The order of conviction and sentence passed by the High Court cannot be reversed or altered on account of that irregularity."
7. Similar view has been expressed by the Supreme Court in the case of State of Assam v. Abdul Noor and Ors., 1970(3) S.C.C. 10. In para 13, the afore mentioned view is reflected and the same reads as under:
"In the present case, it is not necessary to go into the question as to whether cognizance was taken without examination of the complaint. The Magistrate can under Section 190 of the Criminal Procedure Code before taking cognizance ask for investigation by the police under Section 156(3) of the Criminal Procedure Code. The Magistrate can also issue warrant for production before taking cognizance. If after cognizance has been taken, the Magistrate wants any investigation, it will be under Section 202 of the Criminal Procedure Code. The investigation which was ordered in the present case elucidated facts as to the marriage of Amina Khatoon whereupon it is clear the complaints do not disclose any offence."
8. The afore-mentioned view has also been taken in the cases of R.R. Chari v. State of U.P., A.I.R. 1951 S.C. 207; Nirmaljit Singh v. State of West Bengal, A.I.R. 1972 S.C. 2639 and Devarapalli Lakshminarayana Reddy v. Narayana Reddy, A.I.R. 1976 S.C. 1672.
9. In R.R. Cari's case (supra) it has been made clear that cognizance can be considered to have been taken by the Magistrate when the Magistrate himself takes notice of an offence and issue process. Before the issuance of process by the Magistrate it cannot be concluded that cognizance has been taken by the Magistrate because he has yet to make up his mind whether on the basis of the available evidence a prima facie case is made out to issue process or take any other recourse.
10. In view of the above discussion, I do not find any substance in the submissions made by the learned counsel that the Magistrate by recording preliminary evidence is deemed to have taken cognizance of the offence and he was obliged to issue process against the accused persons. It can also not be accepted that the impugned order passed by the Magistrate suffers from lack of jurisdiction and was to decide whether she was to issue process against the accused or not. The powers given under Section 202 of the Code are wide enough as has been observed by their Lordships of the Supreme Court in the case of Jamuna Singh (supra) and the Magistrate would have jurisdiction under Section 202 of the Code to direct the police to file a report after investigation. It is further pertinent to mention that the Magistrate in this case has not expressed any opinion about the probability of the commission of the offence either way. The petition is thus without any merit and is liable to be dismissed.
11. For the reasons recorded above, this petition fails and the same is dismissed.