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Judgment
Sukhdev Singh Kang, J.—This is a petition u/s 482 of the Code of Criminal Procedure for quashing First Information Report No. 268 dated 8th September, 1981, under sections 420, 467 and 468, Indian Penal Code, registered at Police Station, City Sirsa.
Dharam Chand and his nephew (sister''s son) Krishan Kumar owned truck No. 1147-DHG. In the month of April 1979 they entered into an agreement with Mathura Parshad to sell this truck to him for Rs. 65,000/-. Rs. 25000/- were paid as advance and a receipt was executed evidencing this fact. The possession of the truck was handed over to Mathura Parshad. It was agreed that Mathura Prashad would pay the remaining amount within a short period. It is the case of the complainant that there after Mathura Parshad did not pay the remaining amount and he and his son Vinod Kumar prepared false and forged document and, on their basis, got the truck transferred in the name of Smt. Shakuntla Devi, wife of Mathura Parshad. Dharam Chand has filed a complaint u/s 471, 467, and 468 read with section 109, Indian Penal Code, in the Court of Chief Judicial Magistrate, Sirsa, on September 28, 1979. After recording preliminary evidence, he summoned Mathura Parshad and Vinod Kumar as accused to stand their trial for offences under sections 467 and 471 read with section 109, Indian Penal Code, vide order dated November 14, 1979. He, however, did not summon Smt Shakuntla Devi as accused. Aggrieved by the order of the Learned Chief Judicial Magistrate in not summoning Smt Shakuntla Devi, the complainant filed a revision petition before the learned Additional Sessions Judge, Sirsa There, his Learned Counsel made a statement on 19th April, 1980, that the evidence for summoning Smt. Shakuntla Devi accused was not sufficient. He, however, stated that he would move an application for producing further evidence on this point before the learned trial Magistrate. The learned Additional Sessions Judge, Sirsa, in view of this statement Dismissed the revision petition as withdrawn and directed the parties to appear before the learned trial Magistrate at Sirsa on April, 22, 1980.
Thereafter, the matter was pending before the trial Magistrate. On the application made by Dharam Chand, a case, First information Report No. 268 dated 8th September, 1981, under sections 420, 467 and 468, Indian Penal Code, was registered at Police Station, City Sirsa, against Smt. Shakuntla Devi, Vinod Kumar and Mathura Parshad. The three accused have been released on bail u/s 438, Criminal Procedure Code, 1974.
The three accused, namely, Mathura Parshad, Smt. Shakuntla Devi and Vinod Kumar, have filed this petition and have prayed that the aforesaid first information report should be quashed. It may be observed that vide order dated 25th November 1981, at the stage of preliminary hearing, after notice of motion, the petition filed on behalf of Mathura Parshad and Vinod Kumar was dismissed and it was admitted qua Smt. Shakuntla Devi.
Mr. G.S. Bawa, Learned Counsel for the petitioner, has argued that the learned Magistrate had taken cognizance of the offence when he issued the order for summoning the accused. He had, after applying his judicial mind, declined to proceed against and summon Smt. Shakuntla Devi. That order become final. She could not be made an accused by an indirect method by getting a case registered against her He also contended that, during the pendency of a case before a criminal court, no other case on those very facts can be registered This will amount to interfering in the due course of justice.
The order of the Chief Judicial Magistrate refusing to summon Smt. Shakuntla Devi was assailed by a revision petition by the complainant On a statement made by the Learned Counsel for the complainant in the presence of the Learned Counsel for Smt. Shakuntla Devi, the learned Additional Sessions Judge sent the case back to the learned Chief Judicial Magistrate, giving an option to the complainant to move the trial Court to adduce further evidence to prove the complicity of Smt. Shakuntla Devi. So, it cannot be said that the question as to whether Smt. Shakuntla Devi had to be arrayed as an accused person or not, was finally settled by the trial Court.
The second point raised by the Learned Counsel is more important and requires a deeper consideration Ordinarily, the process of the Courts cannot be allowed to be interfered with by any other agency by conducting preliminary investigation IV the Code of Criminal Procedure, as it stood before the year 1973, there was no statutory powers with the police to continue investigation of the case when a criminal Court had taken cognizance of the offence either through a police challan or on the basis of a complaint by a private complainant. However, drastic changes have been made in the present Code of Criminal Procedure, 1973 Sub section (8) has been introduced in Section 173 of the Code of Criminal Procedure, which empowers investigation by the police even after the challan has been put in Court and the matter is being enquired into By incorporating section 210 in the Code of Criminal Procedure, the Legislature has authorized the police to investigate a case even on the same facts on which a criminal Court has taken cognizance on a complaint made by a private person and is conducting enquiry or trial. It would be apposite to reproduce section 210 of the Code of Criminal Procedure, 1973, at this stage:--
210--Procedure to be followed when there is a complaint case and police investigation in respect of the same offence:--
(i) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made 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 held by him, the legistrate shall stay the proceedings of such 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 u/s 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 inquire 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 police report.
(3) If the police report does not relate to any accused in the complaint cases 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.
It is manifest from the language of the afore-quoted section that whenever it is brought to the notice of a criminal court that police is investigating the offence which is the subject-matter of the complaint, the Magistrate has to stop further proceedings in the complaint case.
Mr. Bawa contended that section 210 of the Code of Criminal Procedure, 1973, takes care of only those cases in which a case is registered by the police but no challan is put in and the complainant, dissatisfied with the conduct of the police, is compelled to file a complaint and that complaint, does not precede the first information report and follows it. The argument is plausible on the face of it, but does not bear scrutiny. There is nothing in section 210 of the Code of Criminal Procedure, 1973, to support this contention. It is mentioned therein in clear terms that at whatever stage information is given to the learned Magistrate, regarding the pendency of police investigation, he has to stop further proceedings. This section does not say that the investigation should be only in a case which had been registered prior to the filing of the complaint.
It was contended that the complainant should have first approached the Superintendent of Police under sub section (3) of section 154 of the Code of Criminal Procedure, 1973, before approaching the Chief Judicial Magistrate and there has been a violation of the mandatory procedure prescribed by the Code of Criminal Procedure. This contention apparently has no force. The language of sub section (3) of section 154 of the Code of Criminal Procedure, 1973, is only directory. There is no penalty prescribed for non-observance of this sub-section. This only enables a party to seek redress Failure to adopt this course does not incurr any penalty. Further more, in the written statement filed by the complainant, it has been mentioned that he had approached different police authorities but without any success. Thus, the argument of Mr. Bawa that, in case a person aggrieved by the conduct of the Station House Officer, does not approach the Superintendent of Police, he is not entitled to any relief from the Police agency. This interpretation, if accepted, will lead to grave injustice.
It was faintly contended by Mr. Bawa that the case has been registered after more than 2 years after filing the complaint. Simple delay in registering a case is not a ground for quashing the first information report, if at all it can be quashed.
For the foregoing reasons, I find no merit in this petition and the same is dismissed.