Madhya Pradesh High Court
Arvind @ Kallu vs State Of M.P. on 27 August, 2014
1 M.Cr.C.No.7019/12
Arvind @ Kallu & Another Vs. State of M.P. & Others
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
***
Present HON. SHRI JUSTICE B.D.RATHI *** (Misc. Cri. Case No.7019/2012) Arvind @ Kallu & Another Vs. State of Madhya Pradesh & others Shri Pradeep Katare, Advocate for the petitioners.
Shri Anil Kumar Shrivastava, Panel Lawyer, for respondent No.1/State.
Shri V.D.Sharma, Advocate for respondents No.2 and 3.
O rder (Passed on 27th Day of August, 2014) Per B.D.Rathi, J. -
The present petition is directed against an order dated 24/7/12 passed by the Judicial Magistrate First Class, Gwalior in Criminal Case No.6983/12, taking cognizance against the accused-petitioners for commission of offence punishable under Section 302/34 of I.P.C.
(2) The facts in nutshell, just necessary for the decision of this petition are that complainant Gyanmala wd/o Gajendra (since deceased), resident of Bajriya (Kanera), P.S. Ater accompanied with her brother-in-law (Jeth) Ramesh Singh, on 15/9/11 lodged a report at police station Maharajpura, district Gwalior to the effect that she alongwith her family was 2 M.Cr.C.No.7019/12 Arvind @ Kallu & Another Vs. State of M.P. & Others residing in the rented house in Bhagat Singh Nagar. She stated that her husband Gajendra Singh on 13/9/11 left the house after informing her to go to overhead water tank but thereafter he did not turn up. During search, his dead-body was found lying behind the school premises. On the report Marg No.39/11 under Section 174 of Cr.P.C. was registered and investigation started. During inquiry into Crime No.308/11 registered for offence under Section 302 of I.P.C., statements of the complainant Gyanmala and others witnesses were recorded by the police. In the statements of the witnesses so recorded, the involvement of only accused Omkar @ Chhukha in commission of the offence prima facie was found proved hence, the accused Omkar @ Chhukha was arrested. His memorandum was recorded where he admitted to commit the murder of the deceased. Accordingly, after investigation, charge-sheet against accused Omkar @ Chhukha was filed in the court by the police. Thereafter the matter was committed to the court of Sessions Judge, Gwalior. Now, Session Trial No. 97/12 is pending against the accused Omkar @ Chhukha in the court of Ninth Additional Sessions Judge, Gwalior.
(3) During pendency of the case, complainant Gyanmala moved the court with a private criminal complaint against accused Munna Singh, Arvind Singh (petitioner No.1), Brijendra Singh (petitioner No.2) and Omkar Singh to register a case against these accused under Sections 302, 366, 506 part-II, 452/34 of I.P.C. The private complaint was registered as Criminal Case No.6983/12 against Munna Singh, Arvind Singh and Brijendra Singh on 24/7/12 before that statements of the complainant Gyanmala (PW-1) and of other witnesses Ramesh Singh (PW-2), Shailendra Singh (PW-3), Bhupendra (PW-4), Keshav (PW-5), Babu Singh (PW-6), Suresh Singh (PW-7) were recorded. After analyzing the evidence of the 3 M.Cr.C.No.7019/12 Arvind @ Kallu & Another Vs. State of M.P. & Others witnesses examined under Section 200 and 202 of Cr.P.C. (in short the "Code"), the court prima facie found involvement of co-accused Munna Singh, Arvind Singh and Brijendra Singh in commission of offence under Section 302/34 of I.P.C., hence, the presence of the accused-persons was secured through arrest warrants. Being aggrieved by the order dated 24/7/12, the present petition has been filed.
(4) Learned counsel for the petitioners argued that the charge-sheet has been filed by the prosecution after completion of the investigation on the FIR lodged by the complainant Gyanmala only against Omkar @ Chhukha. Therefore, now the petitioners can only be summoned under Section 319 of the Code in proceedings pertaining to FIR and therefore separate complaint on the identical facts against the petitioners does not lie and the cognizance could not be taken on the basis of the complaint which has been submitted after due diligence. On merit also, it is submitted that no case is made out against the petitioners because neither in the police report nor in the statements of the witnesses recorded under section 161 of Cr.P.C at the time of investigation, names of the present petitioners were disclosed by the complainant and her witnesses, therefore, the learned Magistrate has taken cognizance wrongly and summoned the petitioners. The complaint and summoning order are not sustainable in the eyes of law. In support of his submissions, learned counsel for the petitioners relied upon the decision of the Hon'ble Apex Court in the case of Jile Singh Vs. State of U.P. and another, 2012 (3) SCC 383 and contended that in view of the law laid down by Hon. Apex Court in the said judgment, complaint as well as summoning order are required to be quashed by allowing the present petition.
(5) On the other hand, learned Panel Lawyer for 4 M.Cr.C.No.7019/12 Arvind @ Kallu & Another Vs. State of M.P. & Others State/respondent No.1 as well as learned counsel for respondents No. 2 and 3 vehemently opposed the contentions raised by the learned counsel for the petitioners and contended that even in cases where charge-sheet has been filed, complaint is tenable for those persons who have not been arraigned as accused in the charge-sheet filed by the police. It is, therefore, submitted that the complaint is maintainable against such persons. So far as merit is concerned, it is submitted that after consideration of the evidence recorded, the cognizance has been taken by the Magistrate. The impugned order is, therefore, well merited calling for no interference.
(6) Having regard to the arguments advanced by the learned counsel for the parties, the entire case has been examined.
(7) Admittedly, in marg intimation, no names of the culprits were disclosed. During the course of investigation, on 18/9/11 handwritten complaint marked as Annexure-R/1 was filed before the Investigating Officer in which names of the present petitioners were disclosed as culprits. Since no action was taken, another complaint was made to the Superintendent of Police, Gwalior marked as Annexure-R/2, dated 30/9/11. This time also no heed was paid to the complaint and therefore on the ground of inaction on the part of the police authority, the complainant left with no other option except to file private complaint in the court which has been filed as Annexure-R/3. The Magistrate, after recording preliminary evidence, arrived at a conclusion that there appeared sufficient ground to proceed against the petitioners, as such, cognizance has been taken by him after issuing process against the petitioners.
5 M.Cr.C.No.7019/12Arvind @ Kallu & Another Vs. State of M.P. & Others (8) Following two questions arise for consideration as follows:-
(i) Whether, private complaint is maintainable against the petitioners who were not arraigned as accused in charge-sheet filed by the police after investigating the FIR on identical facts ?
(ii) Whether, no case is made out against the petitioners and impugned order of taking cognizance was wrongly passed by the Magistrate ?
QUESTION NO (I) (9) The procedure of investigation by police ordered under Section 156(3) Cr.P.C. and the one directed under Section 202 Cr.P.C. is the same, but a rider has been put by the first proviso to Section 202(1) of the Code that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation. In such a situation, the Magistrate is to call upon the complainant to produce all his witnesses and examine them on oath as the offence is exclusively triable by the Court of Session. Proviso to Section 202(1) of the Code lays down that direction for investigation shall not be made where it appears to the Magistrate that offence complained of is triable exclusively by the Court of Session or where the complaint has not been made by a Court unless the complainant and the witnesses have been examined on oath under Section 200. Under Section 202(2), the Magistrate making an inquiry under sub-section (1) can take evidence of the witnesses on oath. Thereafter that Magistrate can either dismiss the complaint under Section 203 of the Code or proceed under Section 204 of the Code which provides for issuance of the process if the Magistrate is satisfied that there is a sufficient ground for doing so. The expression "sufficient 6 M.Cr.C.No.7019/12 Arvind @ Kallu & Another Vs. State of M.P. & Others ground" used in Sections 204 and 209 of the Code means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. Thereafter, the Magistrate is to comply with the provisions of Section 209 of the Code and commit the case to the Court of Session when the offence is triable exclusively by it.
(10) Now, in a case where the Magistrate to whom a report is forwarded under sub-sec.(2) of S.173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding or in other words, if final report is filed by the police itself that no case is made out, in such circumstances, the Magistrate is bound to give notice to the informant and provide him an opportunity of being heard at the time of consideration of the report under Section 173(2) of Cr.P.C. It is further incumbent upon the police officer that after investigation when final report is produced by him under Section 173(2)(i) of the Code then he shall communicate to the person under Section 173(2)(ii) of the Code by whom the information relating to commission of offence was first given. Reasoning behind it is that informant should know the result and fate of the FIR lodged by him and in view of that time to time it was held by the Court that on receipt of final report from the police under Section 173 of the Code recommending dropping of the proceedings, Magistrate has to first issue notice to the complainant before passing the order. Though statute does not expressly require a notice to be issued or hearing to be given to the party adversely affected, in the eyes of law, it is just necessary that they should be heard by the Court before making an order of dismissal of the complaint. Aforesaid was expressed in Chandrasekhara Pandian Vs. Muthukaruppa Thevar, 1983 Madras Law Weekly (Criminal) 347.
7 M.Cr.C.No.7019/12Arvind @ Kallu & Another Vs. State of M.P. & Others Similar view was also expressed in the case of K.V.N. Koteswara Rao Vs. P.V. Krishna Prasad, 1994 Cr.L.J. 833 (A.P.) and Bhagwan Singh Vs. Commissioner of Police (AIR 1985 SC 1285).
(11) In Bhagwan Singh (supra), what was held by Hon. Apex Court having regard to the same context of providing opportunity of hearing is quoted below:-
"There can, therefore, be no doubt that when, on consideration of the report made by the officer in charge of a police station under sub- section 2(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 of the Code decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report."
(12) In view of aforesaid, it is clear that the Magistrate shall call the complainant to file protest petition against the final report of police, if he desires.
(13) In same way, in the case of Shivshankar Singh Vs. State of Bihar and another reported in (2012) 1 SCC 130, the Hon. Apex Court has held as under:-
"The law does not prohibit filing or entertaining of the second complaint even on the same facts, provided the earlier complaint has 8 M.Cr.C.No.7019/12 Arvind @ Kallu & Another Vs. State of M.P. & Others been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint, which could have titled the balance in his favour. However, the second complaint would not be maintainable in a case wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.
The protest petition can always be treated as a complaint and proceeded with in terms of Chapter XV Cr.P.C. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second protest petition can also similarly be entertained only under exceptional circumstances. In case the first protest petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh protest petition is filed giving full details, it would be maintainable.
(14) Thus, the principles of law laid down in the cases referred to above expressly provide a right to file a protest petition which can be treated to be a private complaint and there is no impediment in law for entertaining such complaints, if person involving the crime has been left over by the police during the course of investigation. This view gets fortified on the basis of the judgment pronounced by Hon. Apex Court in the case of Kishan Lal Vs. Dharmendra Bafna and another (2009)3 SCC (Cri) 611, Hareram Satpathy Vs. Tikaram Agrawala and others (1978) 4 SCC 58 and Shivshankar Singh Vs. State of Bihar and another reported in (2012) 1 SCC 130.
(15) In the present case, the scope of summoning additional accused under Section 319 Cr.P.C. is not an issue, but it 9 M.Cr.C.No.7019/12 Arvind @ Kallu & Another Vs. State of M.P. & Others involves consideration of question whether the petitioners can be summoned as accused in a private complaint despite the fact that the police in said case has opted to file charge-sheet leaving the petitioners/accused.
(16) No doubt, when charge-sheet has been filed and committed to the Sessions court then only the provision to arraign new accused in trial given under Section 319 of Cr.P.C., comes in to play which reads as follows : -
"319 Power to proceed against other persons appearing to be guilty of offence (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under Subsection (1), then :--
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;
(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused when the Court took cognizance of the offence upon which the inquiry or trial was commenced."
(17) The question regarding summoning of a person as an additional accused under Section 319 of the Code on the basis 10 M.Cr.C.No.7019/12 Arvind @ Kallu & Another Vs. State of M.P. & Others of statements of complainant and her witnesses without cross- examination stands referred to the case of Hardeep Singh Vs. State of Punjab & Others reported in 2014 Cr.L.R. (SC) 310, in which the Hon'ble Supreme Court has held as under "Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the Court after the trial commences, for the exercise of power under section 319 Cr.P.C, and also to add an accused whose name has been shown in Column 2 of the charge sheet.
In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial."
(18) So far as word "inquiry" employed in Section 319 of Cr.P.C. is concerned, the Hon. Apex court in the case of Hardeep (supra) has already commented upon and the Magistrate is thus competent to proceed to summon the additional accused on the basis of private complaint, who has not been sent up by the police or dropped during the course of investigation. It is pertinent to mention here that the decisions given in the cases of Ranjeet Singh Vs. State of Punjab (1998) 7 SCC 149, Kishori Singh Vs. State of Bihar (2004) 13 SCC 11, Ram Kishore Prasad Vs. State of Bihar (1996) 4 SCC 495 have been overruled by Hon. Apex court in its recent decision taken in the case of Dharam Pal Vs. State of Haryana (2014) 2 SCC (Cri) 159 holding that the earlier decisions on the subject in issue cannot lay down an absolute rule of law.
11 M.Cr.C.No.7019/12Arvind @ Kallu & Another Vs. State of M.P. & Others (19) The facts of Jile Singh's case (supra) were that police investigated the matter in a murder case and submitted charge-sheet against one of the accused. Magistrate committed the case to the Sessions Court. Meanwhile, father of the deceased filed a private complaint before the Chief Judicial Magistrate for summoning another person as his name figured in the investigation, but police did not file charge-sheet against him. The Magistrate after recording preliminary evidence, summoned the said person. The Hon'ble Supreme Court held that the order of the Chief Judicial Magistrate is illegal and it was not open to the Chief Judicial Magistrate to exercise powers under Section 204 (1)
(b) of the Code. It is held that once the Sessions Court had taken cognizance of the offence in pursuance of the committal order, the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching 'evidence collection' when powers under Section 319 of the Code can be invoked. It has further been held that when a case is committed to the Sessions Court, it is the Sessions Judge who has got powers to add a new accused in the exercise of powers under Section 319 Cr.P.C., after recording some evidence and not before it. Aforesaid directions were based upon the principles laid down in the cases of Ranjit Singh Vs. State of Punjab (1998) 7 SCC 149 and Kishori Singh Vs. State of Bihar (2004) 13 SCC
11. This analogy has subsequently been changed by overruling the judgments in recent views expressed by the Apex Court in the cases of Dharam Pal Vs. State of Haryana (2014) 2 SCC (Cri)159 and Hardeep Singh Vs. State of Punjab & others 2014 Cri.L.J. (SC) 310. Hence, the petitioners cannot take advantage from the case of Jile Singh (Supra).
(20) Eventually, the judgments pronounced in the cases of 12 M.Cr.C.No.7019/12 Arvind @ Kallu & Another Vs. State of M.P. & Others Dharam Pal and Hardeep Singh (supra) hold complete control over spheres on the subject of arraignment of the persons who were dropped by the police during the course of investigation.
(21) On coming back to the impugned order dated 24/7/12 passed in a private complaint case filed by complainant Gyanmala with one Ramesh Singh, it is clear that after taking into consideration the entire material produced by the complainant, it has been held by the JMFC that "prima facie offence under Section 302/34 of I.P.C. is made out against accused Munna Singh, Arvind Singh and Brijendra Singh and because offence has already been registered, therefore, re- registration of the complaint is not necessary and only endorsement is made in regard to taking cognizance against these three accused persons. It was also directed by the court that to secure the presence of the aforesaid accused persons after payment of process fee by the complainant, necessary arrest warrants be issued against them.
(22) Having taken into consideration the law enunciated above by the Hon. Apex Court in the context of the maintainability of a private complaint pertaining to an incident regarding which police had filed charge-sheet on the basis of investigation dropping the present petitioners and one more accused, the maintainability of the private complaint is not barred and the impugned order passed in the complaint case for the same incident in which charge-sheet has already been filed against one of the accused Omkar Singh is in consonance with law. The petitioners, therefore, cannot acquire immunity from their prosecution in a private complaint. Accordingly, Question No.(I) is answered against the petitioners.
13 M.Cr.C.No.7019/12Arvind @ Kallu & Another Vs. State of M.P. & Others QUESTION NO.(II) (23) So far as merit of the case is concerned, the learned Magistrate after taking into consideration the statement of complainant Gyanmala (PW-1) and her witnesses, namely, Ramesh Singh (PW-2), Shailendra Singh (PW-3), Bhupendra (PW-4), Keshav (PW-5), Babu Singh (PW-6), Suresh Singh (PW-7) examined under Section 200 and 202 of Cr.P.C. has rightly come to hold that prima facie case is made out against the petitioners also. After perusal of the statements as aforesaid, this court is also of the considered view that no illegality has been committed by the Magistrate in arriving on such a conclusion. Apart that, when complainant had approached the police authority by filing the documents marked as Annexures-R/1, R/2 during the course of investigation before filing of the charge-sheet against one Omkar, which remained unattended to, there remains no scintilla of doubt that the complainant has proved a prima facie of committing an offence under Section 302/34 of I.P.C. against the petitioners also but the police has opted to file a charge-sheet only against one of the accused, as discussed above. Accordingly, the Question No.(II) is also answered against the petitioners.
(24) In view of the above circumstances, this court does not find any ground to quash the criminal proceedings initiated on the basis of a private complaint against the petitioners.
(25) Resultantly, the petition fails and is dismissed. Accordingly, both the courts are directed to proceed with the case in accordance with law, without getting influenced by any of the observations made herein above by this court.
14 M.Cr.C.No.7019/12Arvind @ Kallu & Another Vs. State of M.P. & Others (26) A copy of this order be sent to the courts-below for necessary compliance of the directions and proceeding further as per provisions of law.
(B.D.Rathi) Judge (Bu)