Om Parkash vs Haryana State

R.L. Anand, J.

Om Parkash s/o Shri Sohan Lal r/o Mandi Adampur, Tehsil Adampur, District Hisar, has filed the present criminal revision and it has been directed against the order dated 27.10.1997 passed by the learned Sessions Judge, Hisar, who accepted the revision of Surender Singh s/o Chaudhary Bansi Lal and Joginder Singh alias Jog, former Haryana Minister, and dismissed the private complaint filed by the petitioner by holding that after the acceptance of the negative report filed by the police u/s 173, Cr.P.C., the learned Magistrate could not take cognizance into the matter.

Earlier, the learned Magistrate vide order dated 25.2.1997 decided to summon the respondents u/s 307/34, IPC, read with section 25 of the Arms Act in a complaint filed by the petitioner u/s 307/34, IPC read with section 25 of the Arms Act.

The brief facts of the case can be described as follows :

The petitioner filed a complaint with brief allegations that he was a resident of Adampur and on 27.4.1996 when he was returning to his home at about 10.30 AM after casting his vote in the elections of the State Assembly in the school and when he reached towards village at a distance of 11/2 or 2 killas from the school, then the candidate Surender Singh of Haryana Vikas Party and Joginder Singh alias Jog and Mr. Yadav, Gunman, in white clothes, along with 6/7 other persons came running from the side of the polling booths in the school and at that time his nephew Sushil Kumar s/o Pirthi Singh was letting the ladies descend from a trolley and Jaswant Singh was also standing there at some distance; then Surender Singh and Joginder Singh alias Jog, want towards the vehicle Tata Sumo. Surender Singh after taking the pistol from his gunman Mr. Yadav, fired two shots towards the complainantparty. Joginder Singh alias Jog asked his companion Surender Singh to fire straight on which Surender Singh fired third shot from the pistol which hit in the left thigh of his nephew Surender Singh, who fell down. On seeing this, the accused while sitting in their vehicle ran away towards Mandi Adampur side with their respective weapons. The injured was admitted in the hospital at Mandi Adampur, who, after first aid, was referred to Hisar. Jaswant Singh accompanied the injured to the hospital. The complainant first went to his house to inform his brothers and when he was going to report about the occurrence to the police, then, the police met him at Kranti Chowk and he got recorded his statement to Ronki Ram, SHO, Police Station, Adampur, on which FIR No. 31 of 1996 was recorded. After investigation of the case, the prosecution recommended for the cancellation of the F.I.R. which was accepted by the court. Hence the complaint.

The complaint, in order to prove his version appeared as his own witness as PW1 and he also examined Sushil Kumar, injured as PW2, Jaswant Singh, PW3, besides Dr. J.S. Bhati, PW4, Rajender Kumar, Ahlmad, PW5, Dr. N.M. Sharma, PW6 and Dr. K.C. Singal, PW7. The learned Magistrate, after recording the preliminary evidence in the complaint, came to the following conclusion vide orders dated 25.2.1992 :

"In view of the above said authorities and being a prima facie case against them, the accused are summoned for the allegations of the commission of offences under section 307/34, IPC, read with section 25/24/59 of Arms Act on filing of PF and copy of complaint."

Aggrieved by the said order, Surender Singh and Joginder Singh alias Jog, filed a revision before the learned Sessions Judge, Hisar, who vide impugned order dated 27.10.1997, accepted the revision and the reasons of acceptance of the revision as contained in paras 9 to 11, read as under :

"9. The learned counsel the respondentcomplainant has contended that the learned lower court while accepting the cancellation report, relied upon the judgment in Piara Singh v. State of Punjab, 1992(2) RCR 528 and ordered that the complainant may proceed on with the case and get a judicial decision from the court by filing a regular complaint and that in view of this order, the complaint is competent. The judgment in Piara Singh''s case is challenged on the ground that in this judgment, the judgments of the Apex Court on the point were not referred. It was held that the Magistrate cannot take cognizance of the matter if the police was sending report to the Magistrate u/s 173, Cr.P.C. that the allegations in the FIR were false. The Magistrate has to make an order of cancellation of the case. If the complainant wants to proceed with the case and gets a judicial decision from the court, he could present a regular complaint u/s 190 Cr.P.C. AIR 1952 Pepsu 30 has been relied upon. As against this judgment, the learned counsel for the petitioners has relied upon the judgment of the Apex Court in M/s India Carat Pvt. Ltd. v. State of Karnataka and another, 1989 Supreme Court Cases (Cri.) 306 in which it is held that in spite of police report that no case was made out against the accused, the Magistrate can taken cognizance of the offence u/s 190(1)(b) Cr.P.C. taking into account the statements of witnesses made under police investigation and issue process. Whether the investigation had commenced pursuant to a complaint made before the Magistrate or a report made to the police, would not make any difference in this context. It is cleary held that the Magistrate was competent to direct the registration of a case against the respondent and order and the issue of summons to him even if the police repeort is to the effect that no case is made out against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently applied his mind to the facts emerging from the investigation taking into account the statements of the witnesses examined by the police during the investigation and take congnizance of the case, if he thinks fit in exercise of his powers u/s 190(1)(b) and direct the issue of process against the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in sections 200 and 202 for taking cognizance of a case under section 190(1)(a) though it is open to him to act under section 200 or 202 also. The fact that in this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if complaint had been preferred before the Magistrate and the Magistrate had ordered investigation under section 156(3), the police would have to submit a report under section 173(2).

From the above said judgment of the Hon''ble Apex Court, it is clear that the Magistrate may or may not have accepted the police report, he could rely upon the statement of Om Parkash complainant and Sushil Kumar injured and could order the issue of process even if no separate complaint was filed. He could also do so if the complaint was filed u/s 200 Cr.P.C. and report u/s 156(3) Cr.P.C. was called. There is no difference between the report of the police given on the basis of FIR and the report of the police submitted u/s 156(3) Cr.P.C. The Magistrate can go through the statements and after going through the statements, a judicial order is passed. So, in the present case, in my opinion, the court had heard Om Parkash complainant and Sushil Kumar and refused to record their separate statements because their statements were already on the police file. It was also observed that the FIR of the petitioner bearing No. 32 on the basis of DDR No. 5 which was recorded at 10.45 AM, was recorded later on simply to show that the FIR of complainant Om Parkash bearing No. 31 was earlier. This shows that the court has applied its judicial mind before accepting the cancellation report and passed the order dated 24.10.96. The order dated 24.10.96 is, therefore, a judicial order. It is not a mere administrative order. Where once the court has appreciated the statements of the witnesses in the police report, the court cannot appreciate the same again in a private complaint and order the summoning of the accused. The complainant or injured witnesses could go in revision or appeal against the order dated 24.10.96 as they were already heard by the learned Judicial Magistrate but they have not done so. They have sought the review of the cancellation order by filing a separate complaint u/s 200 Cr.P.C. on 28.10.96. The learned Magistrate has recorded the statements again and has reached a different conclusion which is not allowed.

The point has also been thoroughly discussed and appreciated by the Hon''ble Andhra Pradesh High Court in the case of P.V. Krishna Prasad v. K.V.N. Koteswara Rao, 1991 Criminal Law Journal 341. It is held that the Magistrate has no power or jurisdiction to take congnizance of an offence on the basis of a private complaint that resulted in submission of the report u/s 173, Cr.P.C. consequent upon reference u/s 156(3) Cr.P.C. once he has accepted the negative police report and issued proceedings closing the case. However, the aggrieved party is at liberty to take recourse to a revision or appeal as the case may be, according to law. It is further held that when the Magistrate makes the order u/s 190 Cr.P.C. and after exercising the jurisdiction u/s 190 Cr.P.C., the Magistrate has no power to review the order in view of the provisions covered by section 362 Cr.P.C. In the above said judgment of the Andhra Pradesh High Court, a large number of judgments including those of the Apex Court have been discussed. It has been held by the Hon''ble Apex Court in the judgment cited as 1989 SCC (Cri.) 306 (supra) that it does not make any difference if the cancellation report u/s 173 Cr.P.C. is consequent upon reference u/s 156(3) Cr.P.C. or on the police report. So, in my view, if once the cancellation report u/s 173 Cr.P.C. is accepted by the Magistrate, the Magistrate cannot take cognizance of the offence on the basis of a private complaint. It has been clearly mentioned in the private complaint that the police had given a negative report u/s 173 Cr.P.C. which had been accepted by the Illaqa Magistrate. Hence, the learned Judicial Magistrate was in the knowledge of the cancellation report while taking cognizance of the complaint. In view of the judgments of the Apex Court, the learned Judicial Magistrate could not issue process against the accused on the private complaint when he had accepted the negative report of the police u/s 173 Cr.P.C. During the investigation, the police had recorded the version of all the parties. They had recorded the statements of Om Parkash complainant and Sushil Kumar injured. On the same day, they also recorded the statement of one Om Parkash s/o Mai Lal and Kishori Lal s/o Ram Sarup that Surender Singh did not fire the shot. They had also recorded the statement of Dharamvir constable that he himself had fired shots. The presence of Dharamvir is also not denied as he was security guard of Surender Singh. So, there were statements of all the relevant witnesses before the police during investigation and they filed a negative report u/s 173 Cr.P.C. and the learned Magistrate considered the report thoroughly and passed an order accepting the cancellation of the report. So, in view of the latest law laid down by the Hon''ble Apex Court and as followed by the Andhra Pradesh High Court, the learned Magistrate could not take cognizance of the private complaint when once he had accepted the negative report of the police on the basis of the same statements."

Ultimately, by depending upon the aforesaid reasons, the learned Sessions Judge, came to the following conclusion :

"In view of the above discussion, I find that after accepting the negative report u/s 173, Cr.P.C., the learned Magistrate could not take cognizance and issue process to the accused on a private complaint. The impugned order dated 25.2.95 is, thus, illegal. Accordingly, the revision petition is accepted, the impugned order dated 25.2.97 is set aside and the complaint is dismissed."

Aggrieved by the order dated 27.10.1997, the present revision by the complainant, which I am disposing of with the assistance rendered by Shri Atul Lakhanpal, counsel for the petitioner, and Shri H.S. Hooda, Advocate General, Haryana, who appeared on behalf of the respondents and with their assistance have gone through the records of his case.

The facts in this case are not disputed. The compliant was filed by the present petitioner u/s 307/34, IPC read with section 25 of the Arms Act. Offence u/s 307, IPC, is triable by the court of Sessions ultimately and the Magistrate u/s 208, Cr.P.C., was supposed to commit the case to the court of Sessions after complying with the provisions of the said section.

It is also the common case of the parties that earlier case FIR 31 dated 27.4.1996 u/s 307/34, IPC read with section 25 of the Arms Act was investigated by the police and the police filed the cancellation report. Notice was given to the complainant, who filed the protest petition. The learned Judicial Magistrate Ist Class, Hisar, heard the complainant and the prosecution and, thereafter, vide order dated 24.10.1996 accepted the cancellation report by observing in para14 as follows :

"Therefore, for the above going reasons, I accept the recommendation of the police. The complainant may proceed on with the case and get a judicial decision from the court by filing a regular complaint in view of the decision of our Hon''ble High Court in case titled as Piara Singh v. State of Punjab, 1992(2) S.C. Cases 140 (HC).

Therefore, it would be seen that the learned Magistrate when he accepted the cancellation report gave a right to the complainant to proceed according to law by filing a regular criminal complaint. In pursuance of this order, the petitioner filed the present complaint u/s 307/34 IPC read with section 25 of the Arms Act. Assuming for the sake of arguments that the learned Magistrate had not given the direction to the complainant to file a regular complaint, still whether the complainant had the independent right to file the complaint or not is going to answered by me in the subsequent portion of this judgment.

The learned counsel for the petitioner submitted that the order accepting the cancellation report dated 24.10.1996 is no judgment in the eyes of law. No doubt, the complainant was heard. Notice was given to him before the acceptance of the cancellation report as it was obligatory upon the Magistrate, still there was no regular trial before the Magistrate who accepted the cancellation report. JUDGMENT dated 24.10.1996 was only an order of discharge. It was not a judgment on merits. The complainant was deprived of his right to lead such evidence in support of his case before the Magistrate.

On the contrary, it was argued by the counsel for the respondents that the order dated 24.10.1996 was a judicial order. This order was never challenged by the petitioner either by way of revision or u/s 482, Cr.P.C. The order has attained finality and, in these circumstances, the complaint filed by the complaintant was nothing but an abuse of process of law and once the cancellation report has been accepted in the teeth of the opposition given by the complainant by the competent court of jurisdiction, a separate complaint is barred by virtue of Article 21 of the Constitution of India.

After considering the rival contentions of the parties, I am of the considered opinion that the reasons adopted by the learned Sessions Judge in allowing the revision are totally untenable and have caused miscarriage of justice. The learned Sessions Judge has not applied the correct principles of law. Investigation is the right of the police. As per the provisions of section 173, Cr.P.C. every investigation has to be completed without unnecessary delay and as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. In that eventuality, the Magistrate who is competent to take cognizance into the matter can either accept the report or after issuing notice to the complainant, he can reject the report at his own level after hearing the complainant or he can order for further investigation in the light of the provisions of section 156(3), Cr.P.C. If the Magistrate decides not to accept the cancellation report, either at his own level or on the asking of the complainant, he has to proceed u/s 190, Cr.P.C.

Present is a case where the F.I.R. was registered u/s 307, IPC. The offence was triable by the court of Sessions. It could not be tried by a Magistrate, who was supposed to commit the case to the court of sessions. It was for the court of sessions to decide whether the accused could be charge sheeted or could be discharged. In the present case, the learned Magistrate accepted the cancellation report when he was not competent to take the cognizance into the offence u/s 307, IPC. He disposed of the cancellation report by accepting it with a specific order that the complainant can file a regular complaint. Even if it is assumed for the sake of arguments that the learned Magistrate had not observed in the order dated 24.10.1996 that the complainant was competent to file a regular complaint, still the complainant could file the complaint irrespective of the fact that the cancellation report was accepted with respect to FIR 31 dated 27.4.1996.

In Bhagwant Singh v. Commissioner of Police and another, AIR 1985 SC 1285, it has been held that where the Magistrate 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.

Counsel for the respondents relied upon Subbe Gowda and others v. P.S. Saldana, 1997(2) RCR(Crl.) 575 : 1997(1) All India Criminal LR 49 and submitted that the present complaint filed by Om Parkash is barred by the principle of double jeopardy in view of the provisions of Article 20(2) of the Constitution of India. This citation is not applicable to the facts in hand. In this judgment, the Hon''ble Bench of the Karnataka High Court held that the dismissal of the complaint after examination of the complainant does not entitle the complainant to file a second complainant on the same allegations because no person can be prosecuted for the same offence more than once. As such, the action on the part of the complainant would be attracted by the principle of double jeopardy. Here is a case where the complaint of the complainant was never dismissed on merits. The complainant was only heard by the Magistrate when the latter accepted the cancellation report. The complainant was not afforded an opportunity to lead evidence. There was no fullfledged trial before the Magistrate nor the Magistrate was competent to give discharge of the offence which was exclusively triable by the court of sessions. In these circumstances, the order dated 24.10.1996, cannot be held to be a judgment nor it can be held that there was any trial legally conducted by the Judicial Magistrate Ist Class, Hisar, when he accepted the cancellation report.

Counsel for the respondents also relied upon a judgment in P.V. Krishna Prasad v. K.V.N. Koteswara Rao and another, 1991 Cri.LJ 341, where it has been held in para15 as follows :

"For the foregoing reasons, I hold that the Magistrate has no power or jurisdiction to take cognizance of an offence on the basis of a private complaint that resulted in submission of the report under Section 173 consequent upon reference under Section 156(3) when once he has accepted the negative police report and issued proceedings closing the case. However, the aggrieved party is at liberty to take recourse to a revision or appeal as the case may be according to law."

This judgment in my opinion is not applicable to the facts in hand nor this Court is inclined to accept the same and a valid precedent for the adjudication of the controversy in hand in view of the pronouncements given by the Hon''ble Supreme Court and various other High Courts, including this Court. In Gopal Vijay Verma v. Bhuvneshwar Prasad Sinha and others, (1992) 3 SCC 510, it was held by the Hon''ble Supreme Court in a short order as follows :

"The High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report. The order of the High Court is set aside. The matter is remitted to the Chief Judicial Magistrate, Patna, for disposal according to law. If the accused have any further objection to raise, they may do so before the Chief Judicial Magistrate."

The ratio of this order is fully applicable to the facts in hand.

In Sardara and others v. Muhammad Niwaz and another, AIR (37) 1950 Lahore 40, the Lahore High Court held that when an accused stands discharged on the final report of investigating officer recommending discharge and the Magistrate subsequently against (again ?) issuing warrants of arrest against accused for same offence and the Sessions Judge recommending quashment of the proceedings u/s 35 of the Punjab Public Safety Act read with sections 245 and 403, Cr.P.C., since there was no trial by a Court of competent jurisdiction;. the order of Magistrate did not amount to discharge or acquittal nor could be regarded as one under section 245 and, therefore, section 403 of the Old Procedure was not applicable and the proceedings could not be quashed by the court of Sessions.

The above ratio of the Lahore High Court is again applicable to the facts in hand.

In Rasham Singh v. State of Punjab, 1997(2) Recent CR 277 , following observations were made by this Court in para5 of the judgment :

"Investigation is the domain of the police. If during investigation the police have found that the aforesaid injuries have been selfsuffered by Resham Singh with a view to falsely implicate respondents 4 to 6, this court cannot direct them to switch over and say that these injuries had been authored by respondents 4 to 6 falling within the mischief of section 326, IPC. If the police are submitting report to the Magistrate cancelling the case FIR No. 55 under section 324/34 IPC of PS Bariwala, that would not take away the right of Satnam Singh to go in for complaint against the accused and invoke the jurisdiction of the Magistrate under Section 190(a) Cr.P.C."

Subsequent lines of the above order (are) clearly indicative of the fact that the right of the complainant to file a separate complaint has not been taken away by the law irrespective of the fact that the cancellation report on the same allegations had been accepted by the Magistrate.

Again, in Rakha Singh v. State of Punjab, 1997(2) Recent CR 229 , it was held by an Hon''ble Single Judge of this court that if the FIR has been lodged with the police and the police, subsequently, submits the cancellation report after investigation, that does not take away the right of the complainant to file a complaint case.

In Dr. M.P. Srivastava and another v. Sqn. Ldr. K.V. Vashist, 1991(1) RCR(Crl.) 472 : 1991 CLJ 12 , after relying upon the judgment in 1983 SCC (Cri.) 110, it was held as under :

"Despite the fact that Magistrate has earlier accepted the final report of the police in respect of the FIR in question, the Magistrate is not legally barred from taking cognizance of the offence on the basis of a complaint may be on similar facts and allegations which were subject matter of investigation by the police on the basis of the FIR."

This matter was, again, recently adjudicated in 1998(2) RCR(Crl.) 802 : 1998(2) RCC 419, Rameshwar Dayal v. Col. Ram Singh (Criminal Revision 100 of 1997) by this Court and it was observed as follows :

"Acceptance of the final report by the Magistrate submitted by the police cancelling the case is no bar to the taking of cognizance of the offence later on by the Magistrate. I am supported in this view by a judgment of the Delhi High Court reported as Dr. M.P. Srivastava and another v. Sq. Ldr. K.V. Vashishtha, 1991 Crl. Law Journal 12, where it was held that despite the fact that Magistrate has earlier accepted the final report of the police in respect of the FIR in question, the Magistrate is not legally barred from taking cognizance of the offence on the basis of a complaint may be on similar facts and allegations which were subject matter of investigation by the police on the basis of the FIR."

In Jai Narain v. State of Rajasthan, 1998(3) RCR(Crl.) 409 , it was held that lodging of the FIR with the police and the police submitting a final report recommending cancellation of the FIR and the report being accepted by the Magistrate, does not detrect the complainant of his right to file a separate complaint for the same offence against the same accused in the same transaction and the Magistrate is not debarred from taking the cognizance.

Thus, the above position can be summarised as follows :

Keeping in view the case law which I have just quoted above, the acceptance of the cancellation report by the Magistrate does not debar him to take cognizance into the matter with regard to the same allegations or similar allegations once a complaint is lodged before him and once the Magistrate, after recording the preliminary evidence, is satisfied that particular persons are to be summoned as accused. The order of discharge is not a judgment so as to attract the principles of double jeopardy. The Magistrate, who was not competent to try the offence, the same being triable by the court of Sessions, could not pass an order of discharge but is supposed to send the case to the court of Sessions, which alone is competent to pass the order of discharge or otherwise after hearing the counsel for the parties and after giving opportunity to the complainant. The judgment of the Andhra Pradesh High Court which has been relied upon even by the revisional court, cannot come to the rescue of the respondents. With the acceptance of the revision by the learned Sessions Judge, Hisar, he has committed a patent illegality.

Resultantly, I accept this revision, set aside the order dated 27.10.1997 of the learned Sessions Judge, Hisar, and restore the order of the learned Magistrate dated 25.2.1997, when he decided to proceed against the respondents on the allegations of commission of offence u/s 307/34, IPC read with section 25 of the Arms Act.

The parties, through their counsel, are directed to appear before the learned Magistrate on 7.9.1998, who is directed to proceed with the complaint according to law.

Revision allowed.