MUNNI DEVI Vs. DEVENDRA

JUDGEMENT

(1.) THE petitioner has filed this second petition under Section 482 of Cr. P. C. against the order dated 20.6.2011 passed by learned 3rd Additional Sessions Judge, Bhind in Criminal Revision No. 77/2011 reversing the order dated 18.3.2011 passed by learned Judicial Magistrate First Class, Lahar, District Bhind, sending the complaint for its investigation to the police under Section 156 (3) of Cr. P. C. on the ground that the complaint has been filed for offence under Sections 467, 468/ 34 and 120B of IPC, out of which, the offence punishable under Sections 467 and 468 are triable by the court of Sessions, therefore, the learned Judicial Magistrate First Class had no jurisdiction to send the complaint for its investigation to the police under Section 156 (3) of Cr. P. C. The complainant has filed the present petition for quashing the order of learned lower revisional court on the ground that the order of learned trial court has been reversed on the basis of judgment reported in ILR 2008 MP -2337. Learned Counsel for the respondents No. 1 to 4 has raised an objection that the second petition under Section 482 of Cr. P. C. is not maintainable. He has cited judgment of Hon'ble the Apex Court in the matter of R. Annapurna v. Ramadugu Anantha Krishna Sastry : (2002) 10 SCC 401, in which it has been held that "the second application filed on the same ground is not maintainable. The order of High court allowing the second petition filed under Section 482 of Cr. P. C. cannot stand, though it was passed without being informed of the prior order."

(2.) LEARNED Counsel for the petitioner has submitted that earlier petition filed under Section 482 of Cr. P. C. being M. Cr. C. No. 7948/11 was dismissed as withdrawn by order dated 15.11.2011 and it was not dismissed on merits. He has cited judgment of Gujarat High Court in the matter of R. S. Shah, Competent Authority, Gujarat Slums Clearance Board & Ors. V. Vinod H. Bhrambhatt & Anr. 1995 (2) Crimes 654 in which it has been held that "unconditional withdrawal of application under Section 482 does not amount to dismissal and the petitioner is entitled to approach the High Court second time under section 482 of Cr. P. C."

(3.) LEARNED Counsel for the petitioner has submitted that learned lower revisional court is not justified in reversing the order of learned trial court for sending the complaint for its investigation under section 156 (3) of Cr. P. C. on the ground of judgment of this High Court. Learned Counsel for the petitioner has cited judgment of Hon'ble the Apex Court in the matter of Rameshbhai Pandurao Hedau v. State of Gujarat,, 2010 Cr. L. I. (SC) 318, in which it has been held that "the investigation ordered by Magistrate under section 156 (3) is at the pre -cognizance stage and the inquiry and / or investigation ordered under section 202 is at the post cognizance stage." Learned Counsel for the petitioner has also cited judgment of Hon'ble the Apex court in the matter of Mona Panwar v. High Court of Judicature of Allahabad through its Registrar and others, : (2011) 1 SCC (Cri) 1181, in which it has been held that "order made under section 156 (3) is in the nature of a peremptory reminder or intimation to police to exercise its plenary power of investigation under section 156 (1). The Magistrate can, under section 190, before taking cognizance, ask for investigation by police under section 156 (3)."