Tilak Ram and Others vs State of U.P.

K.N. Ojha, J.—Heard the learned Counsel for the revisionists and the learned A.G.A. and have gone through the record.

Instant revision has been preferred against order dated 31.10.1984 passed by Chief Judicial Magistrate, Muzaffarnagar, in State v. Tilak Ram and two Ors. u/s 302, Criminal Case No. 2794, 9 and 1984, Police Station Kandla, district Muzaffarnagar, by which the final report submitted by the police was rejected and order was passed for registering the case u/s 302, I.P.C. against Tilak Ram, Sohan Vir and Mohak Singh, all residents of village Bhabira, Police Station Kandla, district Muzaffarnagar.

An application was moved before the Superintendent of Police, Muzaffarnagar, on 22.4.1983 by Sukhbir Singh, resident of village Bijrol, Police Station Baraut, district Meerut, that he had married his daughter Sunita with Mohak Singh, revisionist, 9 years before. Two children were born from their wedlock. She was being harassed by her husband and his family members Smt. Vidya, mother-in-law, Tilak Ram, father-in-law and Devar Sohan Vir. On 20.4.1983 they strangulated her to death and lodged a false report at the police station. Some persons went to the complainant''s village and informed him about the death of Sunita. Dead body of Sunita was sent to Muzaffarnagar where funeral was performed at the residence of the complainant. He went to lodge F.I.R. against the revisionists but the police was avoiding. On his application the Superintendent of Police directed the Circle Officer, Shamli to look into the matter at once and action be taken. Investigation was done, thereafter final report was submitted, on which two witnesses Jaipal Singh and Rampal Singh filed their affidavits that their statements were not correctly recorded by the Investigating Officer. After perusal of the case diary, the impugned order was passed.

The learned Counsel for the revisionist has cited H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), , in which it has been held by Hon''ble the Apex Court that a Magistrate who on receipt of a complaint, orders an investigation u/s 156(3) and receives a police report u/s 173(1) of Cr. P.C. may thereafter do one of the three things:

(1) he may decide that there is no sufficient ground for proceeding further and drop action ;

(2) he may take cognizance of the offence u/s 190(1)(b) on the basis of the police report and issue process ; this he may do without being bound in any manner by the conclusion arrived at by the police in their report ;

(3) he may take cognizance of the offence u/s 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses u/s 200, Cr. P.C.

If he adopts the third alternative, he may hold or direct an inquiry u/s 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be. While laying down the law Hon''ble the Apex Court considered AIR 1986 SC 117 and Tula Ram and Others Vs. Kishore Singh,

In this case, order of investigation was not made u/s 156(1) of Cr. P.C. by the Court on the application of the complainant. It was ordered by the Superintendent of Police on the application of the complainant that investigation was to be made and final report was to be submitted after investigation. When three courses are open for the Court to act upon the report submitted by the police, the Magistrate adopted the course open u/s 190(1)(b) of Cr. P.C. by directly taking cognizance without making any inquiry into the matter. The Magistrate could accept the final report or if from the contents written in the case diary, it was found that some more evidence was required or some more inquiry was to be made for arriving at correct conclusion, the statements under Sections 200 and 202, Cr. P.C. could be recorded and order could be passed, but when the Magistrate found that the evidence was sufficient to take cognizance u/s 302, I.P.C., the cognizance was taken. In such circumstance merely because two witnesses have filed their affidavits that they were supporting prosecution story while their statement was wrongly recorded it does not change the section under which the cognizance was taken. It was Section 190(1)(b) under which the cognizance was taken and not Clause 190(1)(a) of Cr. P.C. The Chief Judicial Magistrate after perusing the whole case diary took cognizance and directed to issue summons for appearance of the accused. The ruling cited itself provides second procedure in which the Court can itself take cognizance and it being done so, there is no jurisdictional error, illegality or material irregularity in the impugned order.

Therefore, instant revision fails and it is dismissed.

Let a copy of the order be sent to the Chief Judicial Magistrate, Muzaffarnagar, to proceed with the case expeditiously.