Rajendra Singh and Another vs Smt. Asha Mehta

Amaresh Ku. Singh, J.—Heard the learned Counsel for the petitioners and the learned Counsel for the non-petitioner.

This petition u/s 482 of the Criminal Procedure Code is directed against the order dated 8th December, 1988 passed by the learned Munsif and Judicial Magistrate, First Class, Bhilwara by which order the learned Judicial Magistrate took congnizance of the offences punishable under Sections 406 and 498A" of the Indian Penal Code and directed the issue of summons against the accused petitioners Rajendra Singh and Vridhi Singh.

The facts of the case may be briefly summarised as below:

Non-petitioner Smt. Asha filed a complaint (No. 13/88) in the Court of learned Munsif and Judicial Magistrate, Bhilwara on 15th March, 1988. In her complaint she made allegations against Rajendra Singh, Vridhi Singh and Smt. Sur Sundari W/o Vridhi Singh in respect of the commission of the offences punishable under Sections 406 and 498A of the Indian Penal Code. On 15th March, 1988 a complaint was sent to Police Station Kotwali Bhilwara u/s 156(3) of the Criminal Procedure Code. In compliance with the order passed by the learned Munsif and Judicial Magistrate, Bhilwara a First Information Report No. 158/88 was registered at Police Station, Bhilwara on the basis of the allegations made in the complaint filed by Smt. Asha. The Police conducted investigation and after investigation submitted the final report No. 169/88 dated 30th June, 1988. The Police submitted the final report on the ground that the marriage was solemnised on 16th November, 1984 at Bhilwara and after that Asha went to Bikaner with her husband and lived at Bikaner for sometime and then went to Nathdwara and the disputes between Asha and her husband occurred either at Bikaner or at Nathdwara and not at Bhilwara. The Station House Officer of the Police Station City Kotwali, Bhilwara, therefore, came to the conclusion that no offence was committed within the jurisdiction of Police Station City Kotwali, Bhilwara. He, therefore, submitted the final report.

On 8th December, 1988 the learned Munsif and Judicial Magistrate, Bhilwara after hearing the arguments, too cognizance of the offence punishable under Sections 498A and 406 of the Indian Penal Code and directed the issue of process against the accused Rajendra Singh and Vridhi Singh. No prima facie case was found against the third accused Smt. Sar Sundari W/o Vridhi Singh, therefor, no process was issued against her. It is against the order dated 8th December, 1988 that the petitioners has filed this petition u/s 482 of the Criminal Procedure Code.

The learned Counsel for the petitioners has submitted that the learned Munsif and Judicial Magistrate, Bhilwara had no jurisdiction to take cognizance of the offence alleged to have been committed at Bikaner or Nathdwara and that none of the offence had been committed at Bhilwara. The learned Counsel for the non-petitioner has submitted that since marriage was solemnised at Bhilwara, the Judicial Magistrate, Bhilwara had jurisdiction to take cognizance of the offence punishable u/s 406 of the Indian Penal Code.

I have considered the facts of the case and pondered over the arguments advanced by both the parties. A perusal of the record of the lower Court shows that the learned Judicial Magistrate did not examine the complainant and her witness before the issue of process against the petitioners. It appears that the learned Judicial Magistrate has acted on the complaint filed before him on 15th March, 1988 which was sent to the Police Station City Kotwali, Bhilwara u/s 156(3) of the Criminal Procedure Code. The order dated 15th March, 1988 was admittedly executive order passed u/s 156(3) of the Criminal Procedure Code before taking cognizance of the offence. No subsequent complaint appears to have been filed before him. In this circumstances it is difficult to hold that the Magistrate took cognizance under Clause (a) of Sub-section (1) of Section 189 of the Criminal Procedure Code.

It is true that there was a final report No. 169/88 before him. In the final report the Station House Officer of the Police Station, Bhilwara expressed the opinion that after the solemnisation of her marriage at Bhilwara on 16th November, 1984 Asha went to Bikaner with her husband and from Bikaner she went to Nath Dwara and the alleged offence had been committed either at Bikaner or at Nath Dwara and none of them had been committed at Bhilwara. He, therefore, did not deem it proper to keep investigation pending and submitted the final report.

The Police report covered by Clause (b) of Sub-section (1) of Section 190 of the Criminal Procedure Code, must be a report which the Police Officer has submitted after conducting the investigation in exercise of lawful powers vested in him. Section 2(r) of the Criminal Procedure Code defines Police Report in the following words:

"Police report" means a report forwarded by a police officer to a Magistrate under Sub-section (2) of Section 173.

A bare reading of the definition of the Police Officer may be called the Police report within the meaning of Clause (b) of sub section (1) of Section 190 of the Criminal Procedure Code must be the report submitted u/s Sub-section (2) of Section 173 of the Criminal Procedure Code. In other words the report must be a report which is submitted after conducting investigation in exercise of powers vested in the Police Officer conducting the investigation. Where the Police Officer is of the opinion that he has no power to investigate a offence and submits a report on the ground that he had no power to conduct the investigation, such report cannot be called a "Police Report" within the meaning of Section 2(r) and Clause (b) of Sub-section (1) of Section 190 of the Criminal. Procedure Code. Therefore, in the instant case, final report No. 169/88 cannot be said to be a Police Report contemplated by Clause (b) of Sub-section (1) of Section 190 of the Criminal Procedure Code. The learned Munsif and Judicial Magistrate, therefore, could not take cognizance of the offence tinder Section 190(2)(b) of the Criminal Procedure Code.

There is no indication in the order passed by the learned Judicial Magistrate that he has exercised powers conferred by Clause (a) of Sub-section (1) of Section 190 of the Criminal Procedure Code for taking cognizance.

In view of above circumstances it must be held that the learned Munsif and Judicial Magistrate had no jurisdiction to issue process u/s 204 of the Criminal Procedure Code against the petitioners because the Police Report on the basis of which he appears to have taken cognizance was not a Police Report within the meaning of Section 190(1)(b) of the Criminal Procedure Code and the complaint filed by the non-petitioner had already been disposed of by passing an order u/s 176(3) of the Criminal Procedure Code and no fresh complaint for taking cognizance was filed before the learned Judicial Magistrate.

For reasons mentioned above the impugned order dated 8th December, 1988 passed by the learned Munsif and Judicial Magistrate, Bhilwara deserves to be quashed and set aside and is hereby quashed and set aside. The non-petitioner Smt. Asha would be at liberty to move another complaint if so advised before the competent Court, subject of course to the provisions of Sections 468(2) and 473 of the Criminal Procedure Code. This petition is disposed of accordingly.