PURUSHOTTAM LAL Vs. HARIDWAR RAI AND OTHERS

JUDGEMENT

(1.) This revision has been filed against the order dated 16.8.1982 passed by the Ist Additional Sessions Judge, Ballia in Criminal Revision No. 124 of 1982 allowing the revision and setting aside the order dated 6.5.1982 of the II Additional Munsif Magistrate in Criminal Case No. 191 of 1982, Purushotam Lal Vs. Haridwar Rai and others summoning the accused under Sec. 379 Indian Penal Code. The facts in brief are that a case under Sec. 379 Indian Penal Code was registered against Haridwar Rai and others on 25.6.1981 at about 8.30 p.m. on the basis of a report made by Purushottam Lal alleging that on 24.6.1981 at about 2.00 p.m. a theft was committed within the Police Station Narehai, District Ballia by the accused persons of the materials of construction of house which was kept in the court yard of the complainant Purushottam Lal. After investigation the Investigating Officer submitted final report in the court of Chief Judicial Magistrate, Ballia which was finally accepted on 22.12.1981 by the learned Chief Judicial Magistrate. After the final report was accepted Purushottam Lal complainant filed a Revision No. 18 of 1982 against the order of acceptance of the final report which was ultimately decided on 22.4.1982 by the IV Additional Sessions Judge, Ballia. The revision was rejected. Thereafter the complainant filed a complaint in the court of III Additional Munsif Magistrate, Ballia against the accused persons. The Magistrate after recording statement under Sec. 200 and 202 Criminal Procedure Code passed the summoning order against the accused persons on 6.5.1982. The said summoning order was challenged by the accused persons in revision No. 124 of 1982 which was allowed by the learned Ist Additional Sessions Judge, Ballia on the ground that once the final report under Sec. 173 Criminal Procedure Code has been accepted by the Chief Judicial Magistrate and the order was confirmed in the earlier revision by the Additional Sessions Judge, the Magistrate could not have taken cognizance of the offence on the basis of a fresh complaint and it was without jurisdiction. The learned counsel for the parties have been heard and the record has been perused. The Additional Sessions Judge while allowing the revision through the impugned order has mainly accepted the argument that once the Magistrate finally refused to take cognizance by accepting the final report which was confirmed upto the court of revision, he could not have taken cognizance of the offence again on the same facts because, an accused cannot be vexed twice on one and the same facts. To my mind the reason adopted by the learned Additional Sessions Judge is not sound. A preliminary objection has been raised that the revision is not maintainable against a summoning order which is an inter-locutory order. This objection has no force, in view of the decision of the Honourable Supreme Court in Amarnath Vs. State of Haryana, AIR 1977 SC 2185 , wherein it was held that any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an inter-locutory order so as to bar a revision to the High Court against that order. Orders which are matters of moment and which affect or a particular aspect of a trial cannot be said to be an inter locutory order so as to be outside the purview of the revisional jurisdiction of the High Court. Coming to the merits of the matter, in P.N. Pandey Vs. State, 1968 ALJ 768 , a Division Bench of this court has taken the view that there does not appear to be any bar to a Magistrate taking cognizance of a case on second though after having accepted the final report once. The order approving the report under Sec. 169 Criminal Procedure Code is not an order of acquittal and Sec. 403 of Criminal Procedure Code can possibly have no application to the question under consideration. The court was considering the provisions of Criminal Procedure Code 1898. The principles, however, are the same in the new Criminal Procedure Code of 1974. In Abhindandan Jha Vs. Dinesh Mishra, 1967 (4) ACC 306 (SC) , the Apex Court while considering the provisions of Criminal Procedure Code 1898 held that there is not power expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police, to submit a charge sheet, when they have sent a report under Sec. 169 of the Code, that there is no case made out for sending up an accused for trial. functions of the Magistracy and the Police are entirely different, and though the Magistrate may or may not accept the report and take suitable action, according to law, he cannot impinge upon the jurisdiction of the Police, by compelling them to change their opinion, so as to accord with his view. There is certainly no obligation on the Magistrate to accept the report, if he does not agree with the opinion formed by the Police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding opinion of the police, to take action, under Sec. 190 (1) (c) of the Code. That provision in our opinion, is obviously intended to secure that offence may not go un-punished and justice be invoked even where persons individually aggrieved are un-willing or unable to prosecute, or should Police, either want only or through bona fide error fail to submit a report setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence not only when he receives information about a commission of an offence from a third person but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under Sec. 190(1)(c) on the ground that, after having due regard to the final reports and the police records placed before him he has reason to suspect that an offence has been committed. In Shaukat Ali Vs. State, 1978 (15) ACC 391 , a single bench of this Court held that where final report has been submitted by the Police but the complainant has filed an objection which in common parlance is treated as a protest petition challenging the correctness of the final report, the Magistrate was quite justified and had the power also to take cognizance of the offence under Sec. 190 Criminal Procedure Code on the basis of Protest Petition filed before him. In Banshi Modi Vs. State of Bihar, 1982 Cr. L.J. 1201 , a single Bench of the Patna High Court held that once the court accepts final report and discharges the accused it cannot, on the basis of complaint, take cognizance against these persons. However, this view is against the law discussed above. Acceptance of final report does not finally conclude the matter. If there is a protest petition or a complaint and further evidence is brought on the record, the Magistrate can after taking into consideration the additional evidence, take cognizance of the matter under the provisions under Sec. 190 Criminal Procedure Code. In Khacheru Singh Vs. State of U.P. and another, AIR 1982 SC 784 (2) , the Supreme Court while discussing the powers of the Magistrate under the Criminal Procedure Code held that if the Magistrate had issued a summons to the accused person and if eventually the learned Magistrate comes to the conclusion that no offence was made out against the accused it will be open to him to discharge or acquit the accused as the case may be. It is difficult to appreciate why the order issuing summons to the accused should be quashed. In Ratan Singh Vs. Kasum, 1985 (22) ACC 39 , a single bench of this Court held that where a First Information Report was submitted and after investigation a final report was submitted but a complaint was also filed and statements were recorded under Sec. 200 or 202 Criminal Procedure Code, the consideration on which final report was submitted by the Police would be irrelevant. The courts will have to confine themselves to the allegations made in the complaint to find out if a prima facie case is made out therein or not. In the present case also after the final report was filed, a complaint was also filed and in that complaint statements were recorded under Sec. 200 and 202 Criminal Procedure Code and on that basis the Magistrate directed that the accused be summoned. There is thus no illegality in the summoning order passed by the Magistrate. In M/s. India Carat Pvt. Ltd. Vs. State of Karnataka, 1989 (26) ACC 280 , the Supreme Court held that upon receipt of a Police Report under Sec. 173(2) Criminal Procedure Code a Magistrate is entitled to take cognizance of an offence under Sec. 190 (1) (b) Criminal Procedure Code even if the Police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the Police during the investigation and take cognizance of the offence complained of, and order the issue of process to the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and taking cognizance of the case if he thinks fit, in exercise of its power under Sec. 190 (1) (b) and direct issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sec. 200 and 202 Criminal procedure Code of the Code for taking cognizance of a case under Sec. 190 (1) (a) though it is open to him act under Sec. 200 and 202 Criminal Procedure Code also. In a Division Bench case of the Patna High Court Chandra Shekhar Chaudhary and others Vs. Raj Kishore Jha, Crl. Misc. Application No. 505 of 1982 , a copy of which has been supplied by the learned counsel for the revisionist after a careful consideration of the law, the learned Judges came to the conclusion that when a complaint is sent to the Police under Sec. 156(3) Criminal Procedure Code and in the meantime a protest petition is filed or in the course of Police Investigation a protest petition is filed and is kept pending and the Magistrate after disposing of the case on receipt of the Police report, is fully competent to deal with the complaint. It is not at all necessary to keep the matter pending on receipt of the police report and pass the order on the protest petition and the Police report together. It was further concluded that if a protest petition in the nature of complaint is filed after the final form is accepted, then it must on some fresh materials or it must be shown that the previous order was passed on incomplete record or a mis-understanding on the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence be brought on the record of the previous proceedings as held in the case of P.N. Talukdar Vs. Saroj Ranjan, AIR 1962 SC 876 . In the instant case also after the final report was accepted the complaint was filed and evidence was recorded and on that basis the summoning order was passed. The learned counsel for the opposite parties has cited a decision of this Court Hari Krishan Vashisth Vs. Government of U.P., 1985 ACJ 184 and has argued on the basis of the above decision that it is well settled that no court or Tribunal can revise or review its order or reopen the case unless such a power is conferred by the Statute. It has therefore, been urged that the Magistrate after accepting the final report could not have revised or reviewed its own judgement by passing an order of summons against the accused. The argument is fallacious. The Magistrate while summoning the accused in a complaint case is not reviewing its own order passed earlier on a final report. Complaint is a separate matter which has to be decided on merits after following the procedure of Sec. 200 and 202 Criminal Procedure Code. For the reasons discussed above the impugned order passed by the learned Additional Sessions Judge in Criminal Revision No. 124 of 1982 must be set aside and the summoning order passed by the learned Magistrate must be restored. The revision is therefore, allowed. The order dated 16.8.1982 passed by the Ist Additional sessions Judge, Ballia in Criminal Revision No. 124 of 1982 is set aside and the summoning order dated 6.5.1982 passed by the III Additional Munsif Magistrate in Criminal Case No. 191 of 1982, Purushottam Lal Vs. Haridwar Rai and others summoning the accused opposite parties under Sec. 379 Indian Penal Code is restored. Revision Dismissed.