Chattisgarh High Court
Elisha Walker vs Smt. Kusum Pushpa Tirki And Ors. on 1 August, 2001
Equivalent citations: 2001CRILJ4446, 2002(1)MPHT73(CG)
Author: R.S. Garg
Bench: R.S. Garg
ORDER R.S. Garg, J.
1. By this revision petition, the applicant seeks to challenge the correctness, validity and propriety of the order dated 2-11-2000 passed in unregistered criminal case (Elisha Walker v. Smt. Kusum Pushpa Tirki), rejecting the complainant's complaint.
2. Shri A.N. Bhakt, learned counsel for the applicant, submits that the applicant had examined this ownself and had examined one witness in support of his contention that the accused persons committed the alleged offence. According to him, the learned Trial Court called for the report from the police station. The said police authority submitted before the Court that the present complaint appeared to be counter-blast to exert pressure upon the accused persons. The learned Trial Court by the order impugned observed that the complaint appeared to be belated and a counter-blast of a criminal case registered against the present applicant on the complaint of the accused persons. It accordingly rejected the application. According to him, the Court below was not entitled to reject the complaint only on the basis of the police report.
3. Shri Beriwal, learned counsel for the respondents, submits that the Court below had jurisdiction to appreciate the evidence in its true perspective and if on the basis of police report it held that no cognizance could be taken in the matter, then it was absolutely justified. He further submits that from the police report it would clearly appear that the present complaint was in fact a counter-blast to the complaint lodged by the accused persons against the present applicant.
4. I have heard the parties at length.
5. Undisputedly, on a report lodged by some of the accused persons, crime number 42/2000 for offences punishable under Sections 294 and 506 Part-II of IPC was registered by the police and challan had already been filed before a Competent Court. The present complaint was filed almost after eight months of the earlier incident. The applicant submitted that on the date of incident when he had gone to meet the non-applicant No. 1, who happened to be wife of the present applicant, the co-accused manhandled him, caused him injuries, boarded him in a jeep and continued beating him. The complaint further says that the police instead of taking cognizance of his report arrested him under Section 151, Cr.PC and produced him before the Executive Magistrate, where he had to remain in jail, at least for five days.
6. In support of the complaint, the complainant examined his ownself and stated that he had gone to the place of the accused persons where the non-applicant No. 1 intimidated him, the non-applicant No. 2 caused him injuries and when he fell on ground the other accused persons surrounded him and caused him number of injuries. He has further stated that he was boarded in a jeep and was taken to some distance but in the meanwhile the beating continued. He also stated before the Court that he was sent for his medical and despite positive medical report the police did not do anything in the matter.
7. On the material aspects, he is supported by his witness who was examined under Section 202, Cr.PC. It appears from the records that the learned Trial Court called for the police report. The police submitted the report that present appeared to be a counter-blast to the report lodged by the accused persons. The learned Trial Court took cognizance of the police report, took the same into consideration and observed that the belated filing of the complaint was to show that the present applicant had filed the complaint only to meet the criminal case which was registered against him.
8. Section 210, Cr.PC reads as under:--
"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-- (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is mad,e to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquiry into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a policy report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."
From Sub-section (3) of Section 210, Cr.PC, it would clearly appear that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, then he is duty bound to proceed with the inquiry or trial. Sub-section (3) simply says that if the police report does not relate to an offence or cognizance is not taken on the said report, then the Magistrate has to proceed with the inquiry or trial. Sub-section (3) of Section 210, Cr.PC does not say that the Magistrate would be entitled to take cognizance of the police report for dismissing the complaint. The submission of the learned counsel for the non-applicants is that the police report if did not show commission of any offence, then it would not be necessary for the Magistrate to take cognizance in the matter.
9. If this argument is accepted, then in the opinion of this Court, it would lead to a legal anarchism. In a given case if the police does not take cognizance and even submits report before the Magistrate that no offence is committed, then no Court would be entitled to take cognizance in the matter even if the position evidence is brought on the record.
10. The Magistrate is required to call for a report from the police only to ascertain whether such a report was made, whether such investigation is under progress or not and whether the police after taking cognizance of the complaint is making investigation in the matter. Section 210, Cr.PC does not say that a report submitted by the police officer shall be final for all practical purposes and no Court shall be entitled to go beyond the said report. Under this Section, even if a report is not submitted, then also the Court can proceed with the trial. If a police report is in relation to some of the accused or if is in relation to some offences, only then the Trial Magistrate would be entitled to proceed further with the complaint in relation to the remaining accused persons or the remaining offences.
11. Aprivate complaint can be dismissed only under Section 203, Cr.PC. The order of dismissal of the complaint should be made by exercising judicial discretion and application of judicial mind. If a perusal of the complaint or the evidence led in support of the complaint discloses that the essential ingredients of the offence were wanting or the evidence if taken to be absolutely true would not lead to a conviction, then the Court would be entitled to reject the complaint.
12. In the present case, the learned Trial Court without application of the judicial mind simply relied upon the police report and rejected the complaint.
13. In the opinion of this Court, the order passed by the Court below suffers with defect of jurisdiction and shows absolute non-application of mind.
14. The order passed by the Court below deserves to and is accordingly set-aside. The Trial Court is hereby directed to restore the matter to its original number and re-hear the applicant on the question of cognizance. It is made clear that while passing the order the Court shall not take into consideration the police report which says that no offence has been committed. The applicant shall appear before the Trial Court on 20-8-2001. The registry is hereby directed to send a copy of this order to the concerned Trial Court immediately.
15. The revision is allowed.