State of H.P. vs Lal Singh

H.S. Thakur, J.—The Stale has preferred this appeal against the order passed by the learned Judicial Magistrate 1st Class (2), Shimla, dated 15th June, 1981, whereby he acquitted the Respondent u/s 256 Code of Criminal Procedure due to the non-appearance of the A.P.P.

A few facts relevant to decide this appeal may be stated. One Shri Kedar Nath lodged a report at Police Post Lakkar Bazar, Shimla, to the effect that he is a tenant of one set in ''Puran Niwas'' for the last 20/22 years and is paying rent at the rate of Rs. 25/- per month. It is further stated that this building belonged to Shri Khem Raj which was purchased by Lal Singh Respondent during the year 1980. He also alleged that he had paid a sum of Rs. 300/- to the Respondent by way of advance rent for the year 1981. The Respondent, according to the informant, wanted enhacement of rent from Rs 25/- to Rs. 200/- per month and with this purpose he was picking up quarrel with tenants. On 17th April, 1981, when the informant was in Lower Bazar and his family was in the premises, the Respondent came there and hurled abuses to his family members and threatened them to come out of the house otherwise he would kill them or they would be burnt alive inside the house by setting fire to the house. It was further stated that the Respondent destroyed the steps of the stair cases with stones and caused loss to the tune of Rs:250/- and thus obstructed them from coming out or going inside the premises. The family members of the informant were also threatened with their lives. This is the essence of the allegations made by the informant.

The police presented the challan in the Court of the learned Magistrate on May 18, 1981, and on the same day he passed the following order :

Copy of challan supplied to the accused in Court. Tocome up on 15-6-1981 for consideration of charge. The Ahj. is directed to place the bail bonds on the file. Challan be registered.

Sd/- J.M.I. C(2)

On 15th June, 1981, no one appeared for the State though the Respondent/accused was present with his counsel. The learned Magistrate due to the non-appearance of the A.P.P. acquitted the accused-Respondent u/s 256 Code of Criminal Procedureand also made an order that the stones taken in possession in the case be destroyed and the wood be returned to the rightful owner.

Aggrieved by the said order of the learned Magis trate, the State has preferred this appeal. It is contended by Mr. M.R. Chaudhary, learned Assistant Advocate-General, that the learned Magistrate has acquitted the Respondent un der Section 256 Code of Criminal Proceduretreating the challan as a complaint. It has been further pointed out by him that the challan filed by the police has to be processed under Chapter XIX of the Code of Criminal Procedure dealing with the cases institu ted on a police report. It is also emphasised that the allegations against the Respondent were in respect of offences under Sections 447, 341, 506 and 427 IPC. It is further pointed out that since according to the allegations made in the FIR, the Respondent/accused had threatened the family members of the in formant with death or to burn them within the premises by setting the house on fire, the offence falls u/s 506 Part-two which is punishable with imprisonment for 7 years or fine or both, the case has to be tried as a warrant case. u/s 2 "complaint" has been defined as under :

Complaint'' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation.-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint and the police officer by whom such report is made shall be deemed to be the complainant.

I have already pointed out earlier above that the alle- gations made in the police report are such which constitute an offence u/s 506 Part-two, which is a cognizable offence. Moreover, it is also not a complaint as defined under, Section 2(d) Code of Criminal Procedure As such, Section 256 of the Code will not apply to the facts, of the case but the trial has to be conducted in accordance with the provisions of Chapter XIX of the Code of Criminal Procedure.

The upshot of the above discussion is that the learned Magistrate has erred in acquitting the Respondent/accused u/s 256 Code of Criminal Procedure Consequently, the order of the learned Magistrate is set aside and the appeal is allowed. The case be sent back to the trial Court to try the same in accordance with the provisions contained under Chapter XIX Code of Criminal ProcedureI may, however, observe that my above observations are without prejudice to the merits of the case.

Though it is not of much relevance for the decision of this appeal, nevertheless, for the guidance of the Courts below, I take this opportunity to point out that the judgment of the Supreme Court in Bhagwant Singh Vs. Commissioner of Police and Another, may thoroughly be gone into. I have done so as the Supreme Court at the end of the judgment has directed that the copies of this judgment te sent to the High Courts in all the States so that the High Courts in their turn circulate this judgment amongst the Magistrates within their respective jurisdictions.