MUNILAL Vs. NAWAL KISHORE

JUDGEMENT

(1.) Can a Magistrate, even after accepting the final report filed by the police, still take cognizance of an offence upon a complaint or a protest petition on the same or similar allegations of fact? Is the somewhat tangled common question of law in this set of four cases necessitating this reference to the Division Bench.

(2.) As is manifest, the issue aforesaid being pristinely legal facts would pale into relative insignificance. These may, therefore, be noticed with relative brevity from Criminal Misc. No.4865 of 1980 Munilal Thakur v. Naval Kishore Thakur. A first information report alleging offences under Ss.448, 323 and 436 of the Penal Code was recorded against the petitioners in Police station section. After investigation, the police submitted a final report to the court of the Magistrate on 27th March 1979 with an endorsement that the case was false. It is however common ground that much earlier a protest petition has been filed by the informant complainant on 8th Dec. 1978 in the court. After the receipt of the final report, the learned Magistrate accepted the same on 3rd Jan. 1980. Later however, the informant complainant was examined on solemn affirmation on 28th Jan. 1980 and the protest-cum-complaint petition was also inquired into under S.202 of the Cr.P.C. (hereinafter referred to as the 'Code') and six witnesses were also examined, on behalf of the complainant. By a detailed order dated 29th Aug. 1980 the learned Additional Chief Judicial Magistrate opined that sufficient ground for proceeding against the petitioners for alleged offences under Ss.147, 148, 149, 323 and 436 I.P.C. had been made out and, accordingly, he took cognizance thereof and issued processes against the petitioners. Aggrieved thereby, the present criminal petition was preferred challenging the cognizance itself.

(3.) These cases originally came up separately before two learned single Judges of this Court before whom firm reliance was placed on Chandra Shekhar Chaudhary v. Raj Kishore Jha 1982 BLJ 627 for contending that even after the acceptance of a final report the Magistrate was not in any way debarred from taking cognizance on the complaint-cum-protest petition, alleging similar facts and circumstances. Expressing some doubts about the view in Chandra Shekhar Chaudhary's case and noticing a continuing conflict of precedents in the Court, the matter was referred to a larger Bench.