Rajasthan High Court - Jaipur
Teju Mal vs State Of Rajasthan And Anr. on 5 September, 1988
Equivalent citations: 1988WLN(UC)559
JUDGMENT J.R. Chopra, J.
1. This revision petition has been filed against the order of the learned Chief Judicial Magistrate, Sri Ganganagar dated 18th January 1988 whereby the learned Magistrate has discharged the accused-non-petitioner Daya Krishna of the offences under Sections 170, 419, 420, 392 and 342, IPC on the basis of the final report submitted by Shri Kanti Prakash, Inspector, CID (CB).
2. The facts necessary to be noticed for the disposal of this petition briefly stated are: that petitioner Tejumal filed a complaint in the Court of the learned Munsif and Judicial Magistrate, Anoopgarh on 19-1-1982 pleading inter alia, that accused-non-petitioner Daya Krishna and one more person came to his house on 10-1-1982 at about 4 p.m They were in Police dress. They gave out that they have been sent by Dy. S.P. Hanumangarh. Accused-non-petitioner Daya Krishna told him that he is the Reader working in the Office of the Dy. S.P. Hanumangarh where as his companion told him that he is working as Constable in the Office. It is alleged that these accused-petitioners told the complainant Tejumal that the jeep which is in his possession is a stolen property and so, he should hand over all the papers relating to that jeep otherwise he will be arrested. On this, he handed over all the papers relating to that jeep to them and they took them It is alleged that the complainant told them that he has purchased this jeep from one Ramprakash Mistry through Mahaveer Master. They then took the complainant in the jeep to Hanumangarh and went to Master Mahaveer and told him that he is including himself in the transactions of stolen jeeps. Mahaveer requested the accused-persons to leave him where upon he was left along with the complainant near Rawatsar Road and later, the driver who was driving the jeep was also left and the jeep was taken in possession by these accused persons. It is alleged that they also took out Rs. 100/- from the pocket of the driver.
3. Thereafter, the complainant along with Master Mahaveer went to Ram Prakash Mistry and they told him every thing It is alleged that after 2 days of this incident, accused Daya Krishna was found in possession of this jeep and when the complainant asked him to hand over the possession of that jeep to him but he declined, where upon, a complaint was made in the Court of the learned Munsif and Judicial Magistrate, Anoopgarh, which was forwarded to the Police for investigation under Section 156(3) Cr.PC.
4. In this case, it is alleged that the local Police, after usual investigation came to the conclusion that the accused has committed the crime They were about to file a challan against Shri Daya Krishna where upon, he approached SP, CID (CB) to withdraw this investigation from the local Police. His request was accepted and one Iqbal Singh, Inspector GID (CB), was put Incharge of this case He then arrested the accused-non-petitioner on 1st November, 1982 and the jeep was recovered from his possession and later, it was handed over to the possession of complainant Tejumal. A revision petition was filed against that decision and that too was dismissed. Thereafter, a miscellaneous petition under Section 482 Cr.PC was filed before this Court and that too was dismissed and, therefore, the jeep remained in possession of complainant Tejumal.
5. It was revealed during the investigation that the jeep was given to Shri Ram Prakash Mistry for change of the engine but later, he purchased it and changed its engine and thereafter, sold it to complainant Tejumal for a sum of Rs. 34.400/- It is alleged that Ram Prakash Mistry purchased this jeep for a sum of Rs. 10,400/- and later, he put a Diesel Engine of on it costing about Rs 17,500/-. Shri Iqbal Singh, the Inspector CID (CB), therefore, prepared a charge-sheet against the accused-petitioner but in the meanwhile, an application was made to the Deputy Inspector General of Police, Bikaner to transfer this investigation to some other Officer. This investigation was then transferred to Shri RS Sharma, Additional, SP, who too agreed with the investigation conducted by Shri Iqbal Singh. Thereafter this investigation was got transferred to Shri finder Singh Bhati, who too agreed with the investigation made by Shri Iqbal Singh. Ultimately, this investigation was get transferred to Shri Kanti Prakash, Inspector, CID (CB) under the orders of the Deputy Inspector General of Police, Bikaner and it was be who felt that no case is made out against the accused-non-petitioner.
6. Before the Final Report was submitted, a protest petition was filed by complainant Shri Tejumal in the court of the learned Munsif and Judicial Magistrate, Anoopgarh giving all details of this incident in that petition. The learned Magistrate, after hearing all the parties and after considering the evidence that has been collected in the case came to the conclusion that the investigation made by Shri Kanti Prakash, Inspector, CID (CB) appears to be sound and, therefore, he accepted the Final Report submitted in this case.
7. I have heard Mr. S.R. Singhi, the learned Counsel appearing for the complainant-petitioner, Miss Sumitra Sankhla, the learned Public Prosecutor for the State and Mr. U R. Tatia, the learned Counsel for accused-non-petitioner Daya Krishna. I have carefully gone through the record of the case.
8. Mr. S.R. Singhi, the learned Counsel appearing for the complainant-petitioner has raised the following two points before me.
9. It was urged by Mr. Singhi, the learned Counsel for the complainant-petitioner that in this case, the complainant has filed a protest petition before the Final Report was submitted by the Investigating Officer and, therefore, that protest petition should have been treated as a complaint and the learned Magistrate sought to have made an enquiry under Sections 200 and 202 Cr.PC specially because in this case, the earlier four Investigating Officers have found this complaint to be correct and they were of the opinion that a challan be filed against the accused. According to him, the accused-non- petitioner is an influential man and so, be became successful in getting the Investigating Officer changed one after the other and ultimately, he got an Investigating Officer of his own choice who could file the Final Report in his favour and, therefore, in these circumstances, the learned lower Court should have afforded an opportunity to the complainant, before accepting that Final Report, to lead evidence to show that the investigation conducted by Shri Kanti Prakash, Inspector, CID (CB) is biased and tainted one and actually, the investigation conducted by his predecessors was sound and correct.
10. The second contention raised by Mr. Singhi is that before the cognizance is taken, the accused has no right to be heard and this is the illegality apparent on the face of the record, on the basis of which, this revision petition should be accepted and the case should be remanded back to the learned lower court to decide it afresh.
11. As regards his first contention. Mr. Singhi has submitted that on an investigation conducted under Section 156(3) Cr.PC on the complaint of a private party, which was forwarded to the police by the Court, if the Police submits the negative report and the complainant has filed the protest petition mentioning all the facts constituting the offence, it is the duty of the Court to treat that protest petition as a complaint and it should hold an enquiry under Sections 200 and 202 Cr.PC, after taking cognizance of the complaint thereafter, it should record its reasons whether the complaint has any substance or it should be dismissed under Section 203 Cr.PC. In this respect, he has placed reliance on a decision of the Patna High Court in Saidu Khan v. Gaya Prasad AIR 1941 Patna 144, where in it has been held that where anticipatory protest petition or a petition is filed after the Police submits its report, both of them amount to a complaint and petitioners must be examined under Section 200 and an enquiry should be made under Sections 200 and 202, Cr.PC before the Police report is accepted.
12. Reliance was also placed on a decision of the Calcutta High Court in Satkari Ghosh v. Ram Lakshman Dutta AIR 1947 Calcutta 439, where an investigation made on a complaint filed by the complainant before the court which was forwarded to the Police for investigation, the police submitted the report that the complaint is false and the complainant should be prosecuted under Section 211 IPC. The Magistrate issued a notice to the complainant to show cause as to why he should not be prosecuted under Section 211 IPC. In answer to this notice, the complaint filed a 'Naraji' petition impugning the correctness of the police report and stating that his case was true. The Magistrate examined certain witnesses produced by the complainant and came to the conclusion that a prima facie case had been made out against the comi-planant, decided to try him for an offence under Section 211 IPC. As regards the Naraji petition, the Magistrate observed that this also disposes of the Naraji petition. In those circumstances, the Calcutta High Court held that 'naraji' petition was a complaint within the meaning of Section 4(1)(h). Criminal PC. This being so, the Magistrate ought to have proceeded in accordance with the provisions of Sections 200 and 202, Cr.PC.
13. Mr. Singhi has further placed reliance on a decision of the Orissa High Court in Mahabir Prasad v. The State , wherein it has been held that when ever the final report is submitted by the Police under Section 173 Cr PC or whenever the informant has reasonable grounds to believe that such a final report will be submitted and he wishes to challenge that report, the usual practice for him is to file a protest petition before the Magistrate. Such protest petition may be either anticipatory or it may be filed after submission of the final report. In any case such a protest petition is in the nature of a complaint and should be dealt with in accordance with the provisions of Chapter XVI of the Criminal Procedure Code.
14. A learned Single Judge of the Orissa High Court in Lakshman v. Sudhakar AIR 1969 Orissa 149 has observed that it on submission of a report by the Police, if the protest petition is filed, the dismissal of that petition without examining the petitioner on oath and without proceeding in accordance with the provisions of Chapter XVI, Cr.PC is contrary to law. It was further held that though the Magistrate had no power to call for a charge-sheet, it does not mean that the petitioner should be disentitled to get the relief provided by law. The protest petition was to be treated as a petition of complaint and the procedure by Sections 200 and 202, Cr.PC should be followed by the Court before it could finally dispose of the matter Under/Section 203, Cr.PC.
15. Reliance was also placed on a decision of the Karnataka High Court in K. Sham Rao v. A.R. Diwakar 1980 Cr. L.J. 347 wherein the complaint filed by the complainant was forwarded to the Police by the Court for investigation under Section 156(3) Criminal Procedure Code and the Police submitted the negative report and that report was accepted and the Magistrate refused to take cognizance of the complaint and to hold ah enquiry under Sections 200 and 202 Cr PC. It was held that the procedure adopted by the Magistrate was illegal. The Magistate should have taken cognizance under Section 200, Cr.PC and an opportunity should have been given to the complainant to prove his case.
16. All these authorities support the contention of Mr. Singhi that if a complaint is filed before the Magistrate and it is forwarded to the Police for investigation Under/Section 156(3) Cr.PC and the Police, after investigation, submits the negative report but in the mean while the complainant files a protest petition, that protest petition has to be treated as a complaint and an enquiry as engvisaged by Sections 200 and 202 Cr. PC should be conducted by him. It should not and cannot deprive the complainant to put his case.
17. Mr. Singhi has further relied on a decision of their Lordships of the Supreme Court in Sub-Divisional Magistrate, Delhi v. Ram Kali MR 1968 SC 1, where in it has been observed that under Section 150(1)(b) of the Code of Criminal Procedure, the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words 'may take cognizance' in the context means 'must take cognizance'. He has no discretion in the matter otherwise that section will be violative of Article 14 of the Constitution. Mr. Singhi has, therefore, submitted that when the complainant has brought to the notice of the court by filing a present petition that the averements made by him in his petition were found to be correct by no less than four Investigating Officers the Court should not have rejected the complaint simply on the basis of a negative report submitted by the Investigating Officer, who made all efforts to help the accused.
18. Mr. U.R. Tatia, the learned Counsel appearing for the accused-non-petitioner has submitted that when a complaint is forwarded to the Police for investigation and the Police files a negative report ordinarily revision should not be admitted on behalf of a private party. In this respect, he has placed reliance on a decision of this Court in Kajod v. Ramu and Ors. 1984 Raj. Cr. Cases 167.) Mr. Tatia also place reliance on a decision of their Lordships of Supreme Court in H. S. Bains v. Stale . That was a case in which the Final Report was submitted by the Police under Section 173(1) Cr. PC after investigation. That investigation was conducted by the Investigating Officer under the orders of the Court on a complaint forwarded under Section 156(3) Cr. PC. The learned Magistrate rejected the conclusion of the Investigating Officer and held that prima facie, a case is made out against the accused-petitioner and therefore, it took cognizance against the accused under Sections 448, 451 and 506 IPC and directed to issue the process against the accused. It was against this order of the learned Magistrate that the revision was filed before the Punjab and Haryana High Court which was dismissed and later, the case went up to their Lordships of the Supreme Court in special leave petition and while deciding that special leave petition, their Lordships of the Supreme Court have been pleased to observe:
It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint, a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion, there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203. If in his opinon, there is sufficient ground for proceeding he may issue process under Section 204. How ever, if be thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a 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. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may instead of taking cognizance of the offence, order an investigation under Section 156(3). The Police will then investigate and submit a report under Section 173(1) On receiving the Police Report, the Magistrate may take cognizance of the offence under Section 190(1)(b), and straightaway issue process. This he may do irrespective of the view expressed by the Police in their report whether an offence has been made out or not. The Police Report under Section 173 will contain the facts discovered of unearthed by the Police and the conclusions drawn by the police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate, after receiving the Police Report, may without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and witnesses under Section 200, Cr.PC and thereafter, decide whether to dismiss the complaint or issue process, The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and, therefore, the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate, who on receipt of a complaint, orders an investigation under Section 156(3) and receives a Police Report under Section 173(1), may thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis Of the Police Report and issue process; he may do without being bound in any manner by the conclusions arrived at by the Police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon both the complainant and his witnesses under Section 200. If he adopts the third alternative,, he may hold or direct an enquiry under Section 202 if he thinks fit. Thereafter, he may dismiss the complaint or issue process as the case may be.
Mr. Tatia has submitted that on receipt of such a report, the Court is competent to decide that there is no sufficient ground for proceeding further and it may drop the action. The person who files the protest petition has a right of hearing only and he cannot claim that his protest petition or his original petition (complaint) may be treated as a complaint of the offence and its cognizance should be taken and enquiry as envisaged under Sections 200 and 202 should be made in all cases. He has submitted that although, it is open to the learned Magistrate to treat the original complaint as a complaint and he may proceed to examine on oath the complaint and his witnesses under Section 200 on the basis of his complaint and if he adopts this alternative, he may hold or direct an enquiry under Section 202 if he thinks fit but if he adopts the first alternative i.e he decides that there is no sufficient ground for proceeding further and drops the action, that action cannot be called illegal as per this authority.
19. Mr. Tatia has further submitted that this Court while relying on H S. Bains's case (supra) has held in Chandanlal v. Nandlal 1987 RLW 530 that the Magistrate is competent to drop the action without examining the complainant and the witnesses if any on oath. This was a case, where on receipt of complaint, the Magistrate ordered an investigation under Section 156(3). He received negative Police Report under Section 173(1). On receiving such report, the Court decides that there is no sufficient ground for proceeding further and dropped the action. In these circumstances, this court held that the Magistrate was competent to do as in view of H S. Bains's case(supra) because the learned Judge in Chandanlal's case (supra) there after examined the facts of that case in para 7 of its judgment and he was convinced that the impugned order of the learned lower court was proper in the facts and circumstances of that case. On the basis of H.S. Bains's case (supra) and Chiindanlal's case (supra), I am unable to accept the view propounded by Calcutta, Patna and Orissa High Courts that in such cases, the Magistrate is duty bound to treat the protest petition as a complaint and to undertake an enquiry under Sections 200 and 202 Cr.PC. I can only say that it is open to the Magistrate to accept the negative report after affording an opportunity of hearing to the complainant. He is also free to treat the original complaint as a complaint and can examine the witnesses under Section 200 and thereafter, he may hold an enquiry himself or direct an enquiry under Section 202 Cr.PC if he thinks fit but it is not incubment on him to make such an enquiry by treating the protest petition as complaint in all cases.
20. In this case, the complainant filed the complaint in the Court, which was forwarded to the Police for investigation under Section 156(3) The earlier four Investigation Officers came to the conclusion that actually offence has been committed by the two accused-persons and they were ready to file the challan against the accused-persons but accused-non-petitioner Daya Krishna being an influential man on coming to know about the positive report in favour of the complainant got the investigation transferred from one Officer to another and ultimately, he got an Investigation Officer of his own choice, who could file the Final Report in his favour. In such cases, where the earlier four Investigating Officers have come to the conclusion that there is substance in the complaint of the complaint and actually, an offence has been committed by accused-persons, it would have been most just and proper for the court to have treated the original complaint or the protest petition as a complaint and to examine the complainant and his witnesses Under/Section 200, Cr.PC and then to hold or direct on enquiry under Section 202, Cr.PC.
21. The decision of this Court in Hardeo Singh Sandhu v. State 1986 (1) WLN 9 was followed by me in Jagdish v. State 1988 (1) RLW 227 where in I accepted the revision and quashed the order of the learned Munsif and Judicial Magistrate, Sirohi dated May 15, 1986 and remanded the case back to him with this direction that if he proposes to take cognizance against the accused-persons, he must give them a notice and afford them an opportunity of hearing but the hearing is to be confined to the point as to whether the report under Section 169 Cr.PC is to be accepted or not and cognizance has to be taken then under what offences and no further. Thereafter, in Raghunath and Ors. v. State of Rajas than S.B. Criminal Revisien Petition No. 321 of 1987 decided by me on May 25, 1988), I held that the principle enunciated by me in Jagdish v. State (supra) following the earlier decision of this Court in Hardeo Singh Sandhu's case (supra) does not lay down the correct law in view of the decision of their Lordships of the Supreme Court in H.S. Bains's case (supra) that the accused against whom the investigation has taken place and who has participated in that investigation and might have even suffered custody during investigation has no right to be heard before cognizance is taken against him on the Final Report submitted by the Police. In that case, I took the view that the compliance of Section 210 Cr.PC is not an empty formality. If the Court decides to proceed on a private complaint and if it comes to its notice that the Police Investigation is going on about the same incident then that record has to be called and before the process is issued, the record of the Police Investigation has to be considered. I have taken the view in that case that the aecused has no right of hearing. So far as this case is concerned, it transpires from the order sheet of this case that the accused has put in appearance and his Advocate has filed the Vakalatnama on his behalf. So much so, certain documents have been summoned from the Investigating Officer at his instance. He has also been allowed to produce certain documents and thereafter, after giving him a detailed hearing, the Final Report has been accepted. This procedure is against the law and, therefore, on that account also, the impugned order of the learned lower court deserves to be set aside.
22. Mr. Tatia has referred to a Full Bench Decision of the Patna High Court in Gajendra Swaroop v. Baleshwar Prasad where in it has been held that clauses (a), (b) and (c) of Sub-section (1) of Section 190 Cr.PC pertaining to cognizance of offences by the Magistrate under the said section are in no way mutually exclusive. This authority has no bearing to the facts of the present case.
23. He also referred to a decision of this Court in Makhan Singh v. State of Rajasthan 1987 RLW 386 but that case relates to the question as to what amounts to cognizance and when it can be held that cognizance has been taken by the Court. That case too, has no bearing on the facts of present case.
24. Reliance was also placed on a decision of their Lordships of the Supreme Court in D.L. Lakshimi Narayana v. V. Narayana . This case also describes the expression 'taking cognizance of an offence' and this is not the question at issue before me in this case and hence, this authority has no bearing to the facts of the present case. In Sohan Singh State of Rajasthan (1984 WLN 82) was also referred to by Mr. Tatia. This decision related to the character of the investigations made by the Police under Sections 156(1) or 202(1) Cr.PC. This decision too has no bearing to the facts and circumstances of this case.
25. Mr. Tatia has further placed reliance on a decision of this Court in Hetram Beniwal v. State of Rajasthan 1988 (1) RLW 322, That case relates to a non-cognizable offence. This decision also has no bearing to the facts of this case. Reliance was also placed on Gopal Vijay Verma v. Bhuneshwar Pd. Sinha and Ors. (1982 CR. LJ (SC) 210). That was a case where the Magistrate refused to take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a Police Report. Their Lordships knew that the learned lower court has erred in thinking that it could not take cognizance subsequently. Thus, this decision too has no bearing to the facts and circumstances of this case.
26. In the result, I accept this revision, set aside the impuged order of the learned Chief Judicial Magistrate, Sri Ganganagar dated 18-1-1988 and remand the case back to the learned lower court to proceed further with the case with this direction that the protest petition or the original complaint filed by the complainant be treated as a complaint and then the 'complainant be allowed to lead evidence and an enquiry be held as envisaged by Sections 200 and 202 Cr.PC. Thereafter, after considering the evidence that has been lead by the complainant and the record of the Police Investigation, the learned lower court will be free to take cognizance of the offence againsl the concerned accused and if it feels that no case is made out, it may not issue any process against the accused petitioner. How ever, in doing so, the learned lower court will take care of the fact that the accused has no right to take part in the proceeding or to get any document summoned. If any document has been submitted by him before cognizance has been taken, this should not be considered. The order of the learned lower court to deliver back the possession of the jeep to complainant Dayakrishna is also set aside. The parties are directed to present themselves before the learned Chief Judicial Magistrate, Sri Ganganagar on October 6, 1988.
27. Let the record of this case be sent back to the learned lower court forthwith.