Amar Singh vs Karan Singh and Another

N.K. Jain, J.—This Misc. Petition is directed against the order of learned Munsif and Judicial Magistrate, 1st Class, Bilara dated 12.10.84 whereby learned Magistrate took cognizance against the petitioner.

Brief facts living rise to this petition are that on 26.4.83 one Amra Ram, non petitioner No. 2 applied for a loan of Rs. 25,000/- from Bilara Sahakari Bhumi Vikas Bank Ltd. under the scheme of Bhumi Vikas Karya for digging well and installing pump set and mortgaged his land bearing Khasra Nos. 2631 and 2479, which was verified by the non-petitioner No. 2 as free from encumbrances and loan was granted and the documents were executed in favour of the bank. On enquiry from Deputy Registration Officer, Bhopalgarh, it was found that land measuring 18.15 Bigha of Khasra No. 2479 has been sold to one Kanaram. On this, Karan Singh, non-petitioner No. 1 filed a complaint against the petitioner and non-petitioner No. 2 with the allegation that petitioner and non-petitioner No. 2 inspite of the fact that land was sold to Kanaram on 30.6.83, mentioned the land free from encumbrances and thus committed the offence Under Sections 420 and 120B IPC. After investigation police gave opinion that no case is made out and submitted its final report on 26.10.83. The learned Magistrate on 24.10.84 accepted the FR. Thereafter on 26.7.84 non petitioner No. 1 Karan Singh filed another complaint against the petitioner and non-petitioner No. 2 Under Sections 416, 418, 420 and 120B IPC, the learned Magistrate look cognizance against the petitioner Under Sections 167, 176, 177, 199 and 202 IPC. Aggrieved by this order the petitioner has preferred this aplication.

Mr. J.S. Choudhary, learned Counsel for the petitioner has submitted that the court has no jurisdiction to re-investigate the matter as in this case the court has accepted the final report.

Mr. J.R. Choudhary, learned Counsel for the non-petitioner no. 2 has opposed the petition and submitted that if any fresh fact have come to the knowledge of the court, then the court can take cognizance on the basis of that material.

I have heard Mr. J.S. Choudhary, learned Counsel for the petitioner and Mr. J.R. Choudhary learned Counsel for the non petitioner No. 2 and perused the record. It may be slated at the very outset that when once F.R. is submitted before the learned Magistrate, the Magistrate has three options with him:

(i) he may accept the final report and drop the further proceedings;

(ii) he may decline to accept the final report and may take cognizance; and

(iii) he may proceed to examine the complainant and his witnesses u/s 200 Cr. PC.

If he adopts third alternative, he may hold a direct inquiry u/s 202 Cr. PC if he thinks fit and thereafter he may dismiss the complaint or issue process, as the case may be. The learned Magistrate after considering material on record accepted the final report and discharged the accused. The order has become final, if not set aside thereafter it is not open for the learned Magistrate to take cognizance for the same transaction against the same accused. The order accepting the final report is a judicial order and unless that order is set aside, it is final for all purposes.

In the instant case, the final report was submitted on 26.10.83 but the learned Magistrate was not of the opinion to examine the complainant or the witnesses and he accepted the final report which is a Judicial order. It appears that inspite of accepting the final report non-petitioner no. 1 Karansingh filed a complaint on 26.7.84 for the same offence and the Magistrate after taking evidence of Karansingh Under Sections 200 and Pema Ram attesting witness of the documents lodged before the bank u/s 202, took cognizance which was without jurisdiction. Moreover, the complaint does not dicslose any new material and taking evidence after acceptance of final report is not permissible, even if new material was available. Thus, this mode adopted by the learned Magistrate is not warranted and if the order taking cognizance against the petitioner is allowed, it will amounts to abuse of the process of the court. Thus, in my opinion to secure ends of justice the order of learned Magistrate deserves to be quashed.

In the result, this petition is allowed and the order of learned Magistrate taking cognizance against the petitioner-Amarsingh in case no. 231/84, Karansingh v. Amraram and Anr. is set aside.