NOOR-UD-DIN Vs. STATE

JUDGEMENT

(1.) WITH a view to property appreciate the propriety and the validity of the reference made by the learned Sessions Judge, Jammu, on 30 -5 -1979, it would be desirable to first notice the circumstances giving rise the reference.

(2.) ON the report of the petitioner, Shri Noor -ud -Din Kataria, FIR No.: 226 of 1976, came to be registered by the police station City Jammu, against Shiv Charan and Ram Lal for an offence under section 381 RPC. The police after investigation submitted the final report under section 173 Cr. P. C. stating its conclusions that the report lodged by Noor -ud -Din Kataria was false and that the case be closed as not admitted. The police also separately filed a complaint under section 182/211 RPC against the complainant Shri Noor -ud -Din for his prosecution for having lodged a false complaint. Information about the police report under section 173 Cr. P. C. was issued to the complainant and the complaint lodged by the police under section 182/211 RPC was also taken up by the court and process was issued against the petitioner in case No.: 52 of 30th December, 1977. The complainant on 2 -9 -1978, filed an application before the trial court complaining against the police investigation in FIR 266 of 1976 and requesting for the cognizance of the offence to be taken against the accused named in F. I. R. 266 and further requesting that the complaint under section 182 RFC against him, be dismissed as frivolous and pre -mature, This application was treated as a protest petition in regard to the final report in FIR 266 and the trial court after considering the police diaries and the other record, including the statements of witnesses recorded during the investigation, came to the conclusion that the police had properly investigated the case and that the conclusions to which the police had arrived did not warrant any interference by the court. The trial court agreed with the police report that there were no grounds for proceedings against the accused named in FIR 266 of 1976, that there was no need for any further investigation in this case. The court agreed with the police to close the case. The protest petition was accordingly rejected on 5 -1 -79 and it was directed that the case diaries should be attached to the file of case No. : 53 of 1977 under section 182 RPC against Shri Noor -ud -Din Kataria, The petitioner thereupon preferred a revision in the court of the Sessions Judge, Jammu, on 11 -1 -79, challenging the order of the trial magistrate dated 5 -1 -1979 accepting the police report in FIR 266 of 1976. In the revision petition, it was mainly alleged that the police investigation had not been bonafide and fair. It was also maintained that the petitioner had not been afforded adequate opportunity to establish his case against the accused persons named in FIR 266 by the trial court which had taken cognizance of his protest petition, It was also urged in the revision the offence against the petitioner under section 132 RPC because the report lodged by him was neither false nor malicious. The learned Sessions Judge accepted the revision petition and has recommended to this court to set aside the order dated 5 -1 -79, as also the process issued against the petitioner under Section 183 RPC.

(3.) A perusal of the order of reference shows that the reasons given by the Session Judge for quashing the order dated 5 -1 -79, which was the only order challenged before him in revision, are extraneous and the Sessions Judge completely misdirected himself in dealing with the revision petition. Indeed in para 4 of the order of reference, the Sessions Judge has observed: "The short point involved in the instant revision petition is the scope of maintainability of the protest petition which the petitioner had moved before the court below."