Punjab-Haryana High Court
Manpreet Kaur And Others vs Government Of Nct Of Delhi And Others on 11 September, 2012
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Criminal Misc. No. M-39360 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No. M-39360 of 2011 (O&M)
Date of Decision: 11.9.2012
Manpreet Kaur and others
.....Petitioner(s).
Vs.
Government of NCT of Delhi and others
.....Respondents.
CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present : Ms. Sumita Kapil, Advocate
for the petitioners.
Mr. Anupam Sharma, AAG, Haryana.
Mr. J.S.Sandhu, AAG, Punjab.
Mr. Inder Pal Singh Doabia, Advocate
for respondent No. 5 and 6.
****
RAMESHWAR SINGH MALIK J. (ORAL)
Feeling aggrieved against the alleged harassment at the
hands of the private respondents, the petitioners have approached
this Court, by way of instant petition under Section 482 of the Code
of Criminal Procedure ('Cr.P.C' for short), invoking its inherent
jurisdiction, seeking appropriate directions against the respondents,
not to harass the petitioners by their coercive, intimidatory and
interfering acts.
Facts first. The writ petition (criminal) No. 34 of 2010
(Manpreet Kaur and others versus Government of NCT of Delhi and
others) was filed before the Hon'ble Supreme Court of India with the
Criminal Misc. No. M-39360 of 2011 2
following prayer:-
PRAYER
In the facts and circumstances mentioned above it is,
therefore, most respectfully prayed that this Hon'ble
Court may be pleased to:
A. Issue writ of appropriate nature directing
Respondent No. 3 & 4 to provide immediate police
protection to the petitioners for their life and liberty
in Punjab, Haryana and Chandigarh.
B. Issue writ of appropriate nature directing
Respondent No. 3 & 4 to protect the petitioners
against any coercive and intimidatory and
interfering acts of respondents 5 & 6 and their
relatives.
C. To quash any FIR lodged on the complaint of
respondent no. 5 & 6 in connection to the
disappearance of the petitioners 1 & 2.
D. In the alternative, issue directions to the Hon'ble
High Court of Delhi to record the statements of the
petitioners 1 & 2 as to prevent them from appearing
before Hon'ble High Court of Punjab and Haryana if
prayers A to C are not granted by this Hon'ble
Court.
E. Any other order(s)/direction s) as this Hon'ble
Court may deem fit and proper be also passed in
favour of the petitioner.
Criminal Misc. No. M-39360 of 2011 3
The Hon'ble Supreme Court of India, vide its order dated
2.5.2011, was pleased to order the transfer of above said writ petition
(criminal) No. 34 of 2010 to this Court. The order dated 2.5.2011
passed by the Hon'ble Supreme Court of India, reads as under:-
"Upon hearing counsel the Court made the
following
ORDER
Heard learned counsel for the petitioners as well as for the respondents.
On going through the relief prayed for, we are of the view that the matter has to be agitated before the High Court of Punjab and Haryana at Chandigarh. In view of the same, the present writ petition is ordered to be transferred to the file of Punjab and Haryana High Court. We permit all the parties concerned to put forth their respective claims before the High Court.
With the above observations, the writ petition is disposed of."
In compliance of the order passed by the Hon'ble Supreme Court of India, the matter was put up before Hon'ble the Chief Justice of this Court. The above said writ petition (criminal) No. 34 of 2010, was ordered to be treated as criminal miscellaneous petition under Section 482 Cr.P.C., for issuance of directions and the same was ordered to be listed as per roster. That is how, this Court is seized of the matter.
Criminal Misc. No. M-39360 of 2011 4
When the case was listed for hearing for the first time on 2.1.2012, learned proxy counsel for the petitioner sought time on the ground that learned arguing counsel, who was supposed to come from Delhi, was not available to argue the matter, and on his request, the case was adjourned to 28.1.2012. Since the Government of NCT, New Delhi and Commissioner of Police, IP Estate, ITO New Delhi, were/are respondents No.1 & 2, notice of motion was issued only qua respondents No. 3 to 6, vide order dated 31.1.2012. Since the petitioners have given incomplete address of respondents No. 5 and 6, they were not served. In this view of the matter, vide order dated 27.4.2012, petitioners were directed to furnish complete and correct address of respondents No. 5 and 6 and thereafter, fresh notices were ordered to be issued.
Learned counsel for the petitioners, at the very outset, fairly states that prayer of the petitioners made at clause A and D of the prayer clause, noted above, have since been rendered infructuous, she does not intend to press this petition qua these two prayer clauses i.e. Clause A and D. However, she vehemently contended regarding the prayer made at clause B and C, that respondents No. 5 and 6, in connivance with respondent No .3 and 4, are indulging in their coercive, intimidatory and interfering acts, which has become a constant cause of harassment for the petitioners. Learned counsel for the petitioners, while raising grievance of the petitioners qua prayer made at clause C, contended that FIR lodged by respondents No. 5 and 6 was liable to be quashed. She also submitted that even if the allegations levelled against the petitioners Criminal Misc. No. M-39360 of 2011 5 No. 3 and 4 in the impugned FIR, are taken to be true on their face value, no offence, whatsoever, is made out against them.
Learned counsel for the petitioners concluded by submitting that continuation of the criminal prosecution against petitioners No. 3 and 4 would amount to abuse of process of law and the same is liable to be quashed.
In compliance of the notice of motion, reply by way of affidavit dated 20.4.2012 of Abhey Singh, Deputy Commissioner of Police, (West) Gurgaon, on behalf of respondent No.3, was filed. Similarly, status report by way of affidavit dated 8.8.2012 of Mukhtiar Singh, Assistant Commissioner of Police, Atam Nagar, Ludhiana, on behalf of respondent No.4, was filed.
The stand taken by respondent No.3, as per his reply, is that the petitioners have suppressed and concealed the true facts, with a view to mislead this Court by projecting facts in a distorted manner. The averments taken by respondent No.3, in para 4 and 5 of preliminary submissions of his reply, read as under:-
4. That the petitioners have suppressed and concealed the true facts from this Hon'ble court and tried to misguide this Hon'ble Court by submitting the incorrect facts. The true facts are that on 25.2.2010 at 5:30 A.M., Sub Inspector Niranjan Singh of Punjab Police along with officials of Punjab Police came to Police Station Palam Vihar, Gurgaon for the assistance of local police in the matter vide Rapat No. 23 dated 24.2.2010 Criminal Misc. No. M-39360 of 2011 6 which is enclosed as Annexure R-1. Police Station Model Town, Ludhiana, Punjab. The respondent No.5 Sh. Rupinder Singh i.e. father of the petitioner No.1 and 2 and Sh. Jaspreet Singh i.e. brother of the petitioner No.1 and 2 were also with the Punjab Police. The Punjab Police requested the assistance of local police in searching the daughters i.e. Petitioner No.1 and 2 of Sh. Rupinder Singh i.e. Respondent No.5. The then SHO Sh. Ved Parkash Sub Inspector of Police Station Palam Vihar Gurgaon along with other officials accompanied the Punjab Police at about 6:00 A.M. on 25.2.2010 vide DD No. 42 dated 25.2.2010. Sub Inspector Ved Parkash the then SHO Palam Vihar Gurgaon accompanied the Sub Inspector Nirenjan of Police Station Model Town, Ludhiana and went to house No .3154-A, C-
I Block Palam Vihar Gurgaon of petitioner No.3 and 4. The police requested to open the door for the search of petitioner No.1 and 2 for proper investigation of Rapat No. 23 dated 24.2.2010 but the petitioner No.3 and 4 refused to open the door. One innova vehicle bearing registration No. HR-26 AV-4608 found parked outside the house. In the said vehicle clothes and shoes of petitioner No.1 and 2 were there which were identified by father Criminal Misc. No. M-39360 of 2011 7 and brother of the petitioner No.1 and 2. The local resident of the vicinity also came there. Sh. Rohtash Jangu resident of Welfare Association Palam Vihar, Gurgaon, Sh. Subhash s/o Ved Parkash r/o House No. F-2550, Palam Vihar, Gurgaon, Sh. Rajinder Singh s/o Rajman r/o C-I Palam Vihar, Gurgaon and other persons of locality came there. The local resident of the society were shouting that the girls were inside the house and the situation was becoming very tense. Assistant Comissioner of Police City Gurgaon Sh. Surender Singh and Sub Inspector (Women) Daya Kaur, Gurgaon were also present there. The then Deputy Commissioner of Police, West Gurgaon Sh. Patram also came there to handle the tense situation. The local residents were becoming aggressive and then opened the door. The local police of Gurgaon handled the situation and saved the petitioner No. 3 and 4. But it is incorrect that respondent No.3 took away the petitioner No.4 with them. It is also incorrect that lady police and Ved Parkash SHO broke into the house and beaten the petitioner No.4. The entire allegations against the respondents are totally concocted, false and wrong. The DD No. 7 dated 25.2.2010 at 11:00 A.M. was also entered in daily diary Criminal Misc. No. M-39360 of 2011 8 register of Police Station Palam Vihar, Gurgaon vide Annexure R-2.
5. That Sh. Rajesh Dugal Assistant Commissioner of Police, West Gurgaon made the enquiry about the whole allegation levelled by the petitioner vide enquiry report No. 52-D/SPL dated 19.5.2010. The statements of local resident namely Sh.
Subhash s/o Ved Parkash r/o House No. F-2550, Palam Vihar, Gurgaon, Sh. Mehtab s/o Ishwar Singh r/o C-I 669, Palam Vihar, Gurgaon, Sh.
Rajinder Singh s/o Sh. Rajman r/o C-I Block Palam Vihar, Gurgaon Sh. Jasbir @ Kali s/o Satbir r/o Palam Vihar, Gurgaon, Sh. Rohtash Jangu s/o Meer Singh r/o President Welfare Association Palam Vihar, Gurgoan and other police officers/officials were also recorded who were present on 25.2.2010 at the residence of petitioner No.3 and 4. Nobody made the statement that the local police or Punjab Police about the allegations levelled in the present petition. Thus the whole petition is a bundle of false story and the petitioners have tried to misguide this Hon'ble Court.
Regarding the FIR against the petitioners, respondent No.3 has stated in para 5 (J) of the reply on merits and the same reads as under:--
Criminal Misc. No. M-39360 of 2011 9
That in reply to sub para (J) of para No. 5 of the present petition it is submitted that on 25.2.2010 the local police of Gurgaon went for the assistance of Punjab Police for the rapat no. 23 dated 24.2.2010 Police Station Model Town, Ludhiana. It is also pertinent to mention here that on 25.2.2010 FIR No. 43 dated 25.2.2010 was registered at Police Station Model Town, Ludhiana. The petitioner No. 3 and 4 did not cooperate with the police. However, the true facts already submitted in the preliminary submission may also be read as part and parcel of this sub para. It is specifically denied that the police made interrogatory or any abusing language. The allegations against the police are totally false, wrong and hence denied.
Status report dated 8.8.2012 gives the latest position regarding the status of investigation of FIR No. 43 dated 25.2.2010, under Section 365 IPC, registered at Police Station Model Town, Ludhiana, which is being sought to be quashed by the petitioners. The relevant averments taken in para 1 of the status report dated 8.8.2012, read as under:-
"That in the entire petition, the only allegation against the Punjab Police, as mentioned in sub para (I) of para 5 of the petition, is that the police officials from Punjab Police asked petitioner No.4 Criminal Misc. No. M-39360 of 2011 10 to search her house. In this regard, it is respectfully submitted that respondent No.6 had got registered FIR No. 43 dated 25.2.2010, u/s 365 IPC at P.S. Model Town, Ludhiana against unknown persons for the abduction of her daughters (petitioners No.1 and 2) and in order to locate the daughters of respondent No.6 i.e. Petitioners No. 1 and 2, a police party headed by SI Niranjan Singh had gone to Gurgaon where SHO of P.S. Palam Vihar was contacted and thereafter the police party of SI Niranjan Singh of P.S. Model Town, Ludhiana and a police party of SHO Ved Parkash of P.S. Palam Vihar, Gurgaon went to locate the whereabouts of petitioners No. 1 and 2 but they were not located there and thereafter the police party came back and petitioner No.4 was never abused nor respondent No.5 was accompanying the police officials as alleged. However, during further investigation of the above noted FIR, it was revealed that petitioners No.1 and 2 have themselves gone from their house and no one has kidnapped them. Accordingly, cancellation report u/s 173 Cr.P.C. was filed before the Ld. Illaqa Magistrate but the complainant was not agreed with the cancellation report and as such the Ld. Magistrate directed Criminal Misc. No. M-39360 of 2011 11 further investigation from some Gazetted Officer. Accordingly, further investigation is being conducted by the answering deponent and after completion of the same, final report u/s 173 Cr.P.C. will be filed before the Ld. Magistrate"
It is pertinent to note here that in compliance of the direction issued by the Hon'ble Supreme Court of India, vide order dated 16.7.2010, efforts seem to have been made for effecting an amicable settlement between the parties at the Mediation Centre in the Hon'ble Supreme Court. However, the mediation report dated 30.7.2010 shows that efforts made for the withdrawal of the FIR were failed. Mediation Centre, in its report, has recorded that the girls/petitioners No.1 and 2, were safe and happy while pursuing their study. Their mother-respondent No.6 has also stated during the mediation proceedings that although she would like her daughters/petitioners No.1 and 2 to live and study in Ludhiana, but since the girls/petitioners are mature and of age, she has no objection of any kind, in their pursuing the study of their own choice and at any place. A perusal of the mediation report shows that even the prayer at clause B has also become infructuous.
Learned counsel for the Commissioner of Police, Gurgaon- respondent No.3 as well as learned counsel for the Inspector General of Police, Jalandhar-respondent No.4, submit that although in view of the mediation report and also counter affidavits filed on behalf of respondents No.3 and 4, prayer of the petitioners made at Clause B does not survive, yet they would not be averse to the Criminal Misc. No. M-39360 of 2011 12 proposal that in case an appropriate representation is made on behalf of any of the petitioners either to respondent No.3 or to respondent No.4, raising any grievance against respondents No. 5 and 6, the same shall be considered taking appropriate action, in accordance with law.
However, learned counsel for respondents No. 4 to 6, emphatically opposed the prayer of the petitioners at Clause C- quashing of the FIR. Learned counsel for respondent No. 4 submits that further investigation has already been ordered by the learned court of competent jurisdiction, which is being conducted and after completion thereof, final report under Section 173 Cr.P.C., shall be presented before the learned Magistrate.
In this view of the matter, learned counsel for respondents No.4 to 6 submit that since further investigation is being conducted, in compliance of the judicial order passed by the learned court of competent jurisdiction, the FIR is not liable to be quashed by this Court, while exercising its inherent jurisdiction under Section 482 Cr.P.C., as the same would amount to interference in due process of law. They further submit that had the FIR been without any substance, the learned Magistrate would not have ordered its further investigation.
To buttress his arguments, learned counsel for respondents No. 5 and 6 relied upon the judgment of the Hon'ble Supreme Court in Dharmatma Singh versus Harminder Singh and others, 2011(2) Apex Court Judgments 320 (S.C.). He concluded by submitting that the present petition is wholly misconceived and the Criminal Misc. No. M-39360 of 2011 13 same is liable to be dismissed.
I have heard the learned counsel for the parties and with their able assistance, have gone through the record of the case.
Having given thoughtful consideration to the rival contentions raised on behalf of the parties and in view of the peculiar fact situation of the present case, this Court is of the considered opinion that present one is not a fit case for exercising the inherent powers of this Court under Section 482 Cr.P.C., for quashing of FIR No. 43 dated 25.2.2010 under Section 365 IPC, registered at Police Station Model Town, Ludhiana. I say so for more than one reasons, being recorded hereinafter.
Firstly, this aspect of the matter has gone unrebbuted that learned Illaqa Magistrate has ordered further investigation in this FIR. Further, investigation has been ordered to be carried out by a Gazzeted Officer. In compliance of the judicial order passed by the learned court of competent jurisdiction, Assistant Commissioner of Police, Ludhiana, is conducting the further investigation. In this view of the mater, this Court would be transgressing its inherent jurisdiction under Section 482 Cr.P.C, if the FIR is ordered to be quashed, at this stage, depriving the investigating agency from its legitimate right to conduct the investigation and that too when it is being conducted in compliance of the judicial order passed by the learned court of competent jurisdiction.
Secondly, so far as the petitioners are concerned, they have been proceeding on a very casual approach. Although the petitioners are seeking the relief of quashing of the FIR, noted above, Criminal Misc. No. M-39360 of 2011 14 yet they have not even placed on record a copy thereof. After careful perusal of the record, this Court is of the considered view that so far as overall conduct of the petitioners and private respondents are concerned, less said the better.
However, so far as the order passed by the learned Illaqa Magistrate directing the investigating agency to carry out further investigation is concerned, it is not even under challenge. Lest any prejudice caused to the petitioners, this Court is altogether ignoring the casual approach of the petitioners and also their conduct, in this regard, so as to dispense complete and substantial justice between the parties.
The copy of the FIR has been placed on record by respondent No.4 as Annexure R-4/A with its counter affidavit, filed before the Hon'ble Supreme Court of India. It goes without saying that learned Judicial Magistrate, after hearing the parties and applying judicious mind, has passed the order directing the further investigation of the case. Once it is so, it is not at all the appropriate stage for this Court to interfere with further investigation as ordered by the learned Magistrate, particularly when even the order is not under challenge.
Thirdly, so far as the investigation is concerned, it is the exclusive domain of the investigating agency under Chapter XII Cr.P.C. The law in this regard was laid down as far back as in 1945 by the Privy Council in Emperor versus Khwaja Nazir Ahmad, AIR 1945 PC 18.
The law laid down by the Privy Council in Khwaja Nazir Criminal Misc. No. M-39360 of 2011 15 Ahmad's case (supra), has been consistently followed by the Hon'ble Supreme Court including its judgment in State of Bihar versus J.A.C. Saldana, 1980 (1) SCC 554, which came to be reiterated by the Hon'ble Supreme Court in State of Haryana versus Ch. Bhajan Lal and others, AIR 1992 SC 604 (1).
The relevant observations made by the Hon'ble Supreme Court in para 37 and 38 of the judgment in Bhanal Lal's case (supra) read as under:-
37.The Privy Council in Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 while dealing with the statutory right of the police under Sections 154 and 156 of the Code within its province of investigation of a cognizable offence has made the following observations:
"...........so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The Criminal Misc. No. M-39360 of 2011 16 functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491, Criminal P.C. to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then."
38. Justice D.A. Desai speaking for the Bench in State of Bihar v. J.A.C. Saldanha (AIR 1980 SC
326) (albeit) while dealing with the powers of investigation of a police officer as contemplated in Section 156 of the Code of Criminal Procedure has stated thus:
"There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime Criminal Misc. No. M-39360 of 2011 17 and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognisance of the offence under Section 190 of the Code its duty comes to an end."
The recent judgment of the Hon'ble Supreme Court, in this regard is State of Punjab versus Davinder Pal Singh Bhullar and another, 2012 (1) RCR (criminal) 126.
The next question which falls for consideration of this Court is, as to what is the scope of inherent jurisdiction of this Court under Section 482 Cr.P.C. The issue is no more res integra. This question has repeatedly come for consideration before the Hon'ble Supreme Court of India. It is also the settled proposition of law that although the inherent powers of this Court under Section 482 Cr.P.C. are wide, yet the same are to be exercised sparingly, with circumspection and only to achieve the objects envisaged in the Section itself, namely;
i) to make such orders as may be necessary to give effect to any order under this code;
ii) or to prevent abuse of the process of any Court;
iii)or otherwise to secure the ends of justice. Criminal Misc. No. M-39360 of 2011 18 The law laid down by the Hon'ble Supreme Court in Bhajan Lal's case (supra), has been reiterated in a catena of judgments at later points of time, as well and the recent judgment in this regard is Devinder Pal Singh Bhullar's case (supra). The relevant observations made by the Hon'ble Supreme Court in para 32 and 33, which can be gainfully followed in the present case, and read as under:
32. The inherent power of the court under Section 482 Cr.P.C. is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court, amounts to abuse of the process of court. Therefore, such powers can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the court under the Cr.P.C. Inherent powers cannot be exercised assuming that the statute conferred an unfettered and arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases (Vide: Kurukshetra University & Anr. v. State of Haryana & Anr., AIR 1977 SC 2229; and State of W.B. & Ors. v. Sujit Kumar Rana, (2004) 4 SCC 129).
33. The power under Section 482 Cr.P.C. cannot be Criminal Misc. No. M-39360 of 2011 19 resorted to if there is a specific provision in the Cr.P.C. for the redressal of the grievance of the aggrieved party or where alternative remedy is available. Such powers cannot be exercised as against the express bar of the law and engrafted in any other provision of the Cr.P.C. Such powers can be exercised to secure the ends of justice and to prevent the abuse of the process of court.
However, such expressions do not confer unlimited/unfettered jurisdiction on the High Court as the "ends of Justice" and "abuse of the process of the court" have to be dealt with in accordance with law including the procedural law and not otherwise. Such powers can be exercised ex debito justitiae to do real and substantial justice as the courts have been conferred such inherent jurisdiction, in absence of any express provision, as inherent in their constitution, or such powers as are necessary to do the right and to undo a wrong in course of administration of justice as provided in the legal maxim "quando lex aliquid alique, concedit, concediture et id sine quo res ipsa esse non potest". However, the High Court has not been given nor does it possess any inherent power to make any order, which in the opinion of the court, could be in the interest of justice as the statutory Criminal Misc. No. M-39360 of 2011 20 provision is not intended to bypass the procedure prescribed. (Vide: Lalit Mohan Mondal & Ors. v.
Benoyendra Nath Chatterjee, AIR 1982 SC 785 Rameshchandra Nandlal Parikh v. State of Gujarat & Anr. 2006 (1) R.C.R. (criminal) 675 :
2006 (1) Apex Criminal 224 : AIR 2006 SC 915 ; Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS & Anr., 2006 (3) Apex Criminal 65 : AIR 2006 SC 2872 Inder Mohan Goswami & Anr. v. State of Uttranchal & Ors., 2007 (4) R.C.R. (Criminal) 548 : 2007 (5) R.A.J. 451 : AIR 2008 SC 251 and Pankaj Kumar vs. State of Maharashtra & Ors., 2008 (4) R.C.R. (Criminal) 890 : 2008 (6) R.A.J. 293 : AIR 2008 SC 3077).
Reverting back to the facts of the present case, as far as the present status of the FIR in question is concerned, Assistant Commissioner of Police, Atma Nagar, Ludhiana, is seized of the further investigation. Further, the investigation is being conducted, in compliance of the order passed by the learned Illaqa Magistrate, as stated in para 1 of the status report filed by way of affidavit dated 8.8.2012, reproduced hereinabove.
This Court is of the considered view that legislative intent is to be given due respect by every Court of law. When the provisions of Section 173 (2), (8) and Section 190 (1) (b) Cr.P.C., are read together, it becomes crystal clear that learned Magistrate is not supposed to work either as mouth piece of the prosecution or a post Criminal Misc. No. M-39360 of 2011 21 office. He has got the powers to consider the police report and when after applying his judicious mind, he finds that the allegations in the FIR constituted an offence against the accused, he can take cognizance of the offence under Section 190 (1) (b) Cr.P.C., irrespective of the contrary view expressed by the investigating agency in its report under Section 173 Cr.P.C.
The view taken by this Court also finds support from the judgment of the Hon'ble Supreme in Dharmatma Singh' case (supra) and the relevant observations made in para 10 of the judgment, which aptly apply in the instant case, read as under:-
"It follows that where the police report forwarded to the Magistrate under Section 173 (2) of the Cr.P.C. states that a person has committed an offence, but after investigation the further report under Section 173 (8) of the Cr.P.C. states that the person has not committed the offence, it is for the Magistrate to form an opinion whether the facts, set out in the two reports, make out an offence committed by the person. This interpretation has given by this Court in Abhinandan Jha & Ors. v. Dinesh Mishra [AIR 1968 SC 117] to the provisions of Section 173 and Section 190 of the Criminal Procedure Code, 1898, which were the same as in the Criminal Procedure Code, 1973. In Abhinandan Jha (supra), para 15 at page 122 of the AIR this Court observed: Criminal Misc. No. M-39360 of 2011 22
"... The police, after such investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report."
Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court has no hesitation to conclude that prayer made by the petitioner for quashing of the FIR, being misconceived, bereft of any merit and without any substance, must fail.
Consequently, the prayer of the petitioners at clause C, noted above, for quashing of the FIR No. 43 dated 25.2.2010, under Section 365 IPC, registered at Police Station Model Town, Ludhiana is declined. However, so far as the prayer of the petitioners at Clause B, noted above, is concerned, learned counsel for respondent No.3 and 4 have fairly stated that if any representation is made by the petitioners, in this regard, the same shall be considered, in accordance with law. In this view of the matter, it is directed that if any representation is made by the petitioners, raising their grievance qua their prayer at Clause B, to respondents No. 3 or 4, within a period of six weeks from today, the same shall be considered by respondents No. 3 or 4, as the case may be, dispassionately and Criminal Misc. No. M-39360 of 2011 23 expeditiously, taking an appropriate action, in accordance with law.
Resultantly, with the observations made above, the present petition stands disposed of, accordingly.
(RAMESHWAR SINGH MALIK) JUDGE 11.9.2012 Ak Sharma Criminal Misc. No. M-39360 of 2011 24