Babu Singh Mann Etc vs State Of Punjab & Anr on 15 September, 2008

       IN THE HIGH COURT OF PUNJAB AND HARYANA AT

                           CHANDIGARH.



                                         Criminal Misc.37896-M of 2003

                          DATE OF DECISION : SEPTEMBER 15, 2008



BABU SINGH MANN ETC.                               ....... PETITIONER(S)

                               VERSUS

STATE OF PUNJAB & ANR.                             .... RESPONDENT(S)



CORAM : HON'BLE MR. JUSTICE AJAI LAMBA



PRESENT: Mr. SK Arora, Advocate, for the petitioner(s).
         Mr. HS Brar, DAG, Punjab.
         Mr. PS Brar, Advocate, for respondent No.2.


AJAI LAMBA, J. (Oral)

This petition under Section 482, Code of Criminal Procedure,

has been filed with a prayer for quashing FIR No.31 dated 2.5.2002 under

Sections 379, 506, 148, 149, Indian Penal Code, Police Station, Sadik,

District Ferozepur. Prayer has also been made for quashing of order dated

10.6.2003 (Annexure P-11), passed by the Judicial Magistrate Ist Class,

Faridkot.

The facts, necessary for consideration of the issue involved,

are that respondent No.2-complainant lodged the FIR, as detailed above.

After completion of investigation, final report was submitted by the

Investigating Agency recommending cancellation of the case as no

incriminating material was found against the petitioners. When the
Criminal Misc.37896-M of 2003 2

complainant was informed, he not being satisfied with the investigation,

gave a statement before the Magistrate, whereupon reinvestigation was

ordered. Even on reinvestigation, no incriminating material could be

found and, therefore, again a cancellation report was forwarded. When

the cancellation report was placed before the Magistrate, the complainant

was summoned. The complainant, on 10.6.2003, gave the following

statement before the Magistrate :-

“I do not agree with the cancellation report and I want to
pursue my case as I have already got recorded my statement
on oath on 3.9.2002 and the accused be summoned on the
basis of my statement.”

On the basis of this material, the following order has been

passed, which has been impugned in the present petition :-

“Cancellation report has been presented today. The
complainant has also come present and has got recorded
statement. Accused is ordered to be summoned for
8.7.2003.”

Learned counsel for the petitioners contends that the

cancellation report has been filed twice; the matter is of civil nature and

the impugned order is a non-speaking order in so much as the reasons for

cancellation of FIR have not been referred to much less considered.

Learned counsel for the respondent-complainant has

contended that since the complainant made a reference to the earlier

statement given on 3.9.2002, as has been noticed in the statement given on

10.6.2003, which has been reproduced above, the order is complete in all

regards and no fault can be found.

I have considered the contentions of the learned counsel for
Criminal Misc.37896-M of 2003 3

the parties.

The Scheme of the Code of Criminal Procedure, incorporated

in Chapter XII provides “INFORMATION TO THE POLICE AND

THEIR POWERS TO INVESTIGATE” as the heading. It begins with

Section 154 of the Code, with the registration of a case and concludes at

Section 173 of the Code, regarding the completion of investigation.

Section 154 of the Code provides for the registration of FIR, followed by

various powers and steps of investigation in cognizable and non-

cognizable offences and the examination of witnesses, remanding of

accused etc. Section 169 of the Code provides the discharge of the

accused if evidence is deficient. Section 170 of the Code provides for

sending the case to Magistrate when the evidence is sufficient and that is

followed by Section 173 of the Code . Section 173(2) of the Code

provides that all the particulars indicated in the provision be given. In this

way the Report under Section 173 of the Code is conclusion of the

investigation and the same is termed as ‘final report’ or ‘challan’. Thus,

the investigation is conducted and concluded as per the provisions

contained in Chapter XII of the Code and is in discharge of statutory

duties of the Investigating Agency. The Investigating Agency is expected

to give reasons for recommending cancellation of the case.

Similar issue has been considered by this Court in Criminal

Miscellaneous No.41405-M of 2006 (J.P. Bargale etc. v. State of Haryana

and another) decided on 6.8.2008. The following is the relevant portion:-

“The contention of the learned counsel for the
petitioners is that as against the number of offences alleged
against the petitioners in the complaint, now, the petitioners
Criminal Misc.37896-M of 2003 4

have been summoned to stand trial for commission of offence
under Section 418 read with Section 120-B, Indian Penal
Code, alone. The petitioners, in the facts and circumstances
of the case, are at loss of knowledge and information as to
under what circumstances they have been asked to stand trial
for commission of offence under Section 418, Indian Penal
Code. Learned counsel for the petitioners has contended that
the circumstances of the present case required the Magistrate
to give some reasons so that the petitioner can effectively
bring out their defence.

Learned counsel for the petitioners has referred to Anil
Kumar Sah and others v. Nagendra Singh, 1991 Criminal
Law Journal 421, a judgment of the Patna High Court and
Daleep Singh v. Smt. Magan, 1996 Criminal Law Journal
190, a judgment of the Rajasthan High Court.

Learned counsel for the petitioners has also referred to
a judgment of this Court delivered in CRM 63512-M of 2005
(Dr.Neera Garg v. State of Haryana and another) decided on
10.1.2007. Relevant portion of the judgment in Dr.Neera
Garg’s case (supra) reads as under:-

“A perusal of the impugned summoning
order would show that no reference has been
made to the cancellation report submitted by the
police when the case was referred to the police by
the Chief Judicial Magistrate under Section 156(3)
Cr.P.C. Section 156 (3) is an enabling provision in
regard to the power of police officer to investigate
cognizable cases. Any police officer, even without
the order of a Magistrate can investigate any
cognizable case and in this background Section
156(3) makes a provision that any Magistrate
empowered under Section 190 may order such an
investigation as above mentioned. Once the
matter is referred by the Magistrate to the police
Criminal Misc.37896-M of 2003 5

for investigation under Section 156(3) and report
is submitted pursuant thereto, the same certainly
would be a material, which is to be considered.
Magistrate apparently would lack power to take
cognizance of an offence on the basis of a private
complaint that has resulted in submission of a
negative report under Section 173 consequent
upon reference under Section 156(3) Cr.P.C.,
where he accepts such a report. Reference in this
regard may be made to P.V.Krishna Prasad Vs.
K.V.N.Koteswara Rao and another, 1991 CRL.L.J.

341. Section 202 Cr.P.C. has made it obligatory
on the Magistrate that before summoning the
accused, he shall enquire into the case himself or
direct investigation to be made by the police
officer. Mr.Cheema is justified in submitting that
difference between Sections 202 and 156 Cr.P.C.
would be in regard to investigation of non-
cognizable and cognizable cases and otherwise
these provisions would operate identically. He, as
such, would not be unjustified in relying upon law
laid down in Anil Kumar Sah’s case and Daleep
Singh’s case (supra). Once the matter has been
referred to police for investigation by a
Magistrate, then any report submitted by the
police would be a material, which is required to be
taken into consideration. It may still be ignored but
where this is not taken into consideration, it would
indicate non-application of mind or improper
adjudication of the case, rendering the impugned
order unsustainable being erroneous or improper.
It was also pointed out that in a complaint filed by
the complainant, he had made a specific prayer
before the Magistrate for sending his complaint
Criminal Misc.37896-M of 2003 6

under Section 156(3) Cr.P.C. for registration and
investigation of the case. His prayer in this regard
was:-

“It is, therefore, prayed that the S.H.O., P.S.
Civil Lines, Karnal may kindly be directed to
send the complaint u/s 156 (3) Cr.P.C. for
registration and investigation of the case
under Section 315, 304, 336 read with
Section 34 IPC, in the interest of justice and
observance of Rule of Law.”

On this basis, it was submitted that result of
investigation submitted pursuant to the abovesaid
prayer of the complainant was bound to be taken
into consideration and could not have been
ignored.

I see substance in the submission made by
counsel for the petitioners. The point of view
raised by the counsel tends to seek support from
the judgments in Anil Kumar Sah’s case, Daleep
Singh’s case and K.A.S.Parmar’s case (supra).
The action of the Magistrate in not taking into
consideration the relevant material submitted
before him in the form of police investigation as a
cancellation report was bound to receive
consideration under law and none consideration
thereof has led to an abuse of the process of the
Court and would call for interference in the
impugned order.”

Having considered the matter, I find that a number of
allegations were made in the complaint for commission of a
number of offences. The investigation resulted in a
cancellation report whereupon a protest petition was filed.
After the protest petition, the petitioners have been
summoned for standing trial for commission of offence under
Criminal Misc.37896-M of 2003 7

Section 418 read with Section 120-B, Indian Penal Code,
only. The Hon’ble Supreme Court of India in Pepsi Foods
Ltd. and another v. Special Judicial Magistrate and others,
(1998) 5 Supreme Court Cases 749, has held (in para-28) in
the following terms:-

“28. Summoning of an accused in a criminal case
is a serious matter. Criminal law cannot be set into
motion as a matter of course. it is not that the
complainant has to bring only two witnesses to support
his allegations in the complaint to have the criminal
law set into motion. The order of the magistrate
summoning the accused must reflect that he has
applied his mind to the facts of the case and the law
applicable thereto. He has to examine the nature of
allegations made in the complaint and the evidence
both oral and documentary in support thereof and
would that be sufficient for the complainant to
succeed in bringing charge home to the accused. It is
not that the Magistrate is a silent spectator at the time
of recording of preliminary evidence before
summoning of the accused. Magistrate has to carefully
scrutinise the evidence brought on record and may
even himself put questions to the complainant and
his witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all
or any of the accused.”

The facts and circumstances of the case certainly
require that the petitioners, who have been accused of
commission of an offence, know the reasons for which they
have been summoned, particularly in the facts and
circumstances of the case given hereinabove.”

In the case in hand, I find that the material placed along with
Criminal Misc.37896-M of 2003 8

the cancellation report has not been considered. Summoning of an

accused is a serious matter for the accused as he is required to stand trial.

The FIR version has been investigated by the Investigating Agency. The

Investigating Agency, however, found no reason or material to

recommend trial of the accused. Since the Magistrate has formulated an

opinion that the cancellation report is not acceptable, some reasons ought

to have been given. The impugned order does not even disclose as to for

the commission of which offence, the petitioners have been summoned to

stand trial.

For the reasons given hereinabove, the impugned order

(Annexure P-11) is clearly illegal. Accordingly, this petition is partly

allowed. Order dated 10.6.2003 (Annexure P-11) is quashed.

The matter is remitted to the trial Court for fresh

consideration of the matter, in accordance with law.

September 15, 2008                                        ( AJAI LAMBA )
Kang                                                              JUDGE