MAMTA Vs. STATE OF RAJASTHAN AND OTHERS

JUDGEMENT

(1.) Heard the learned counsel for the parties. In this case the petitioner had filed a complaint for offences under Sections 403, 406 and 498A Penal Code against her husband Raju Saini (respondent No. 1) and his maternal uncle and aunti, Babu Lal and Smt. Bhanwari Devi (respondent No. 2 and 3) respectively. This complaint was forwarded Under section 156(3) Cr.PC by the Magistrate to the police for investigation. On investigation the police found that after the marriage of the petitioner with respondent Raju on 5.5.92 differences arose between them and the matter was taken to the Panchayat of the Samaj. On 14.8.94 the said Panchayat held its meeting. In :that meeting it was settled that on Raju's handing over all the items of Dahej' to the, petitioner and also paying a sum of Rs. 21000.00 to her on account of expenses the matrimonial relationship between the two would come to end and both the parties -would be free to enter into another wedlocks. In terms of this settlement Raju Respondent delivered all the 'Dahej' to the petitioner and paid to her a sum of Rs. 21000.00 also in the presence of the Panchas. Thereafter Raju respondent contacted data marriage with another lady where upon the petitioner filed a petition against him before the concerned Family Court which is still seized of the matter. Having found such facts the police submitted a Final Report Under section 169 Cr.PC in the case. Before accepting the final Report the learned Magistrate issued a notice to show cause to the petitioner. The petitioner filed a protest petition which the learned Magistrate, after hearing the parties, dismissed and accepted the FIR vide his impugned order.

(2.) Mr. Narendra Jain, the learned counsel for the Respondents raised a preliminary objection to the effect that since the impugned order was a revisable order the petitioner, in order to maintain hierarchy of courts, should have approached the concerned Sessions Judge in the first instance instead of directly approaching the court. The objection raised is correct. The practice of by- passing the court of Sessions Judge in the matters involving the concurrent jurisdiction of this Court and the court of Sessions Judge is required to be discouraged. I would have directed the petitioner to maintain the hierarchy of courts in the present case also had I not been of the opinion that such a course would simply multiply and delay the proceedings as the case turns on the question of adopting the procedure laid down in Sec. 210 Cr.PC. That apart, I feel that unless cognizance of an offence is taken by a Magistrate and he has summoned a person as an accused of such offence, the proposed offender has no right to participate in the proceedings before taking cognizance of the offence. For these reasons, I feel inclined to dispose of this petition here and now.

(3.) The main contention of the learned counsel for the petitioner is that after the receipt of a protest petition from the petitioner wherein the petitioner had expressed his intention to produce evidence against the findings recorded and conclusion arrived at by the police in the Final Report the learned Magistrate was duly bound to follow the procedure laid down in Sec. 210 Cr.PC. The argument advanced is correct and stands supported by the decision of this court in Puran Chand Gupta Vs. State (S.B. Criminal Revision Petition No. 244 of 1992) decided on 26.2.93, wherein under similar situation the learned Magistrate was directed to deal with the protest petition. Following the said decision with respect I direct the learned Magistrate in the present case to deal with the protest petition in accordance with law. It is, however, clarified that since the protest petitioner filed by the petitioner against the FIR is to be dealt with as a complaint, the learned Magistrate shall require the petitioner to examine herself Under section 200 Cr.PC and to produce her witnesses for examination Under section 202 Crimial P.C. After examining the complainant and her witnesses in that way he shall hear her before making any order either Under section 203 or Under section 204 Cr.PC, as the case may be. At the time of passing his order under either of the two aforesaid provisions the Magistrate shall take into consideration the report of the police submitted Under section 169 Cr.PC and the material filed alongwith said report. It would be after taking into consideration all the material, as brought on his record by the petitioner Under section 200 and 202 Cr.PC and as obtaining in the police report Under section 169 Cr.PC and the document submitted alongwith such report, that the Magistrate shall pass his order either Under section 203 or 204 Cr.PC, as the case may be. During all these proceedings, to be taken by the Magistrate the respondents shall have no right of participation and appearance.