PAWAN KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for brevity the Code) prays for quashing of FIR No. 456 dated 21.8.2002 P.S. City Hisar under Sections 494/323/506/34 IPC. The FIR has been registered on the basis of the complaint filed by one Smt. Kamlesh before the Judicial Magistrate Ist Class, Hissar. The FIR discloses commission of offences by the husband of the complainant Pawan Kumar in connivance with others of entering into second marriage during the subsistence of the earlier marriage between Pawan Kumar and Kamlesh. It has been alleged that Pawan Kumar has married one Poonam, petitioner accused No. 2 and they have committed offence under Sections 494/323/506 IPC read with Section 34 IPC. The Magistrate exercising powers under Section 156(3) of the Code directed the police to investigate the allegations against the petitioner- accused. Accordingly, the police has investigated and submitted its report under Section 169 of the Code on 28.9.2002 concluding that the allegations in the complaint were false. However, the police issued notice dated 5.6.2003 to the petitioners-accused under Section 160 of the Code directing them to appear in case FIR No. 546 dated 21.8.2002.

(2.) SHRI Ramesh Chahal, learned counsel for the petitioner has argued that FIR in his case is liable to be quashed because once cancellation report under Section 169 of the Code has been filed recording the finding that the allegations against the petitioners were false no proceedings could be initiated thereafter against them. Learned counsel has further submitted that even the Magistrate not entitled to refer the case to the police under Section 156(3) of the Code because the only course available to him is to proceed by recording preliminary evidence under Section 200 of the Code. The whole procedure adopted by the Magistrate is illegal and, therefore, the FIR as well as the subsequent proceedings are liable to be quashed.

(3.) THE Supreme Court also distinguished the earlier view taken in the case of Abhinandan Jha v. Dinesh, Mishra AIR 1968 SC 117 clarifying that the role of the police/investigating agency and that of the Court is well defined under the Code. It further held that they do not interfere in the field of each other. On the one hand, the Magistrate cannot direct the investigating agency to present a challan where the police has come to the conclusion that there is no evidence but at the same time nothing deter the Magistrate from proceeding on his own by recording preliminary evidence and then issue the process against the accused. Therefore, the police report submitted under Sections 169 or 173 of the Code are not the final word with regard to the judicial discretion to be exercised by the Magistrate.