CHANDRA SHEKHAR CHAUDHARY Vs. RAJ KISHORE JHA

JUDGEMENT

(1.) The point raised in this case is of great importance and arises in most of the criminal cases before the Magistrate empowered to take cognizance and it wm be my earnest endeavour to answer the point in a clear cut manner so that the subordinate courts may not have any difficulty in deciding the matter in accordance with law.

(2.) In order to appreciate the point it will be necessary to state the facts. On 10th December, 1979 opposite party No. 1 filed a petition of complaint before the Chief Judicial Magistrate alleging offences against the petitioners under sections 147,323,427 and 379 of the Indian Penal Code. On receipt of the complaint the learned Magistrate sent it to the police to register a case under section 156 sub-clause (3) of the Code of Criminal Procedure which gave rise to Manigachi Police Station Case No. 74(12) 1979 and investigation was taken up by the Police. On 23rd February, 1980 opposite party No. 1 also filed a protest petition against the petitioners and making certain allegations against the Investigating Officer and it may be mentioned that twelve witnesses were also named and section 395 was further added in the aforesaid petition. After investigation final report was submitted by the police on 11th August, 1980 that the case was a false one and civil dispute was involved; a copy of the aforesaid report is Annexure-1. On the same date the learned Chief Judicial Magistrate accepted the final report and discharged the petitioners. On 12th October, 1980 two days after the disposal of the final report the learned Chief Judicial Magistrate considered the protest petition filed on 23rd February, 1980, examined the complainant on solemn affirmation and transferred the case to the file of Sri R. N. P. Sinha, Sub divisional Judicial Magistrate, under section in sub-clause (2) of the Code of Criminal Procedure for disposal. Two witnesses were examined by him and by order dated 19th June, 1981 cognizance has been taken against the petitioners under sections 147, 323,427 and 379 of the Indian Penal Code. Being aggrieved by the aforesaid order the petitioners have moved this Court.

(3.) Learned counsel appearing on behalf of the petitioners has submitted that once the final report having been accepted on 14th August, 1980 the order became final and the learned Magistrate had no jurisdiction to deal with the protest petition and re-open the case. He has submitted that the aggrieved party meaning thereby opposite party No. 1 should have moved the superior court and the learned Magistrate had no jurisdiction to pass any fresh order which will amount to recalling his previous order, for which he had no power under the Code. Next it has been contended that section 395 of the Indian Penal Code was also of the offence mentioned in the protest petition and in that view of the matter, the enquiry, if any, should have been conducted by the Chief Judicial Magistrate himself and he had no power to transfer the case to another Magistrate as he has done in the instant case. In support of his contentions reliance has been placed on some decisions which I propose to consider subsequently.