Crl.Misc.No.M-3418 of 2009 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Misc. No. M-3418 of 2009
Date of Decision: 17 - 3 - 2009
Chander Kant Aggarwal etc. .....Petitioners
v.
State of Punjab and another .....Respondents
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Mr.Veneet Sharma, Advocate
for the petitioners.
Mr.A.S.Brar, DAG, Punjab.
***
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Petitioner is aggrieved against order dated 15.12.2008 passed
by the Court of Judicial Magistrate Ist Class, Amritsar. The order has been
attached as Annexure P-4. Same read as under:-
“Heard. Complainant has suffered a statement on 5.2.08
that he does not agree with the cancellation report submitted by
local police in court. In view of the statement of complainant,
he does not agree with the investigation conducted by police.
However, accused filed petition u/s 482 Cr.P.C. And the
Hon’ble High Court has not quashed the FIR. So as per the
submissions made by the complainant, present cancellation
Crl.Misc.No.M-3418 of 2009 [2]report is returned to the officer-in-charge of Police Station ‘C’
Division to investigate the matter/case and to submit his report
positively as earlier as possible.”
Counsel for the petitioners has made three-fold submissions. It
has been submitted that Magistrate could not order re-investigation and
could not specify any person as Investigating Officer, therefore, the
Magistrate has committed an error by saying that Officer-in-charge of
Police Station ‘C’ Division to investigate the matter. Thirdly, it has been
stated that the Court of Judicial Magistrate Ist Class has been swayed by the
fact that the petition under Section 482 Cr.P.C. was dismissed.
Be that as it may, without going into the controversy involved,
order Annexure P-4 is set aside and the Judicial Magistrtae Ist Class,
Amritsar is directed to decide the matter afresh by taking into consideration
the investigation and the statement made by the complainant on 5.2.2008.
What should be the procedure which should be followed by the
Court of Judicial Magistrate Ist Class was considered and dealt with by this
Court in Criminal Misc.No.M-4542 of 2008, titled `Malkiat Singh
Dhaliwal v. Manpreet Kaur Dhaliwal and another’, decided on 6.1.2009.
This Court while placing reliance upon a Division Bench judgment of
Allahabad High Court in Pakhandu and others v. State of U.P. And
another, 2002 Crl.L.J. 1210 held as under:-
“I am of the view that such a course is not open to the
Sub Divisional Judicial Magistrate. Reliance can be placed
upon ‘Pakhandu and others v. State of U.P. and another’
2002 Crl. L.J. 1210, where a similar controversy arose and a
reference was made to a Division Bench. The Division Bench,
Crl.Misc.No.M-3418 of 2009 [3]after considering the entire conspectus of case law, held as
under:
“15. From the aforesaid decisions, it is thus clear
that where the Magistrate receives final report the
following four courses are open to him and he may
adopt any one of them as the facts and
circumstances of the case may require:-
(I) He may agreeing with the conclusions
arrived at by the police, accept the report and
drop the proceedings. But before so doing, he
shall given an opportunity of hearing to the
complainant: or
(II) He may take cognizance under Section 190
(1) (b) and issue process straightway to the
accused without being bound by the conclusions of
the investigating agency, where he is satisfied that
upon the facts discovered or unearthed by the
police, there is sufficient ground to proceed; or
(III) he may order further investigation, if he is
satisfied that the investigation was made in a
perfunctory manner, or
(IV) he may, without issuing process or dropping
the proceedings decide to take cognizance under
Section 190 (1)(a) upon the original complaint or
protest petition treating the same as complaint and
proceed to act under Sections 200 and 202,
Cr.P.C. and thereafter decide whether complaint
should be dismissed or process should be issued.
16. Where the Magistrate decides to take
cognizance of the case under Section 190 (1)(b) of
the Code ignoring the conclusions arrived at by
the investigating agency and applying his mind
independently to the facts emerging from the
Crl.Misc.No.M-3418 of 2009 [4]investigation records, in such a situation the
Magistrate is not bound to follow the procedure
laid down in Sections 200 and 202 of the Code,
and consequently the proviso to Section 202 (2),
Cr.P.C. will have no application. It would
however be relevant to mention that for forming
such an independent opinion the Magistrate can
act only upon the statements of witnesses recorded
by the police in the case diary and other material
collected during investigation. It is not permissible
for him at that stage to make use of any material
other than investigation records, unless he decides
to take cognizance under Section 190 (1) (a) of the
Code and calls upon the complainant to examine
himself and the witnesses present if any under
Section 200.
17. A plain reading of sub-section (2) of Section
202 with the proviso attached thereto makes it
clear that question of applying the proviso will
arise only in cases where the Magistrate before
taking cognizance of the case opts to hold the
inquiry. This matter was thoroughly examined by
the Apex Court in the latest decision in Rosy v.
State of Kerala, (2000) 1 JT (SC) 84 : (AIR 2000
SC 637).”
This view has been further reiterated by Allahabad High Court in ‘Surya
Bhan v. State of U.P. and another’ 2007 Crl. L.J. 2230.
Copy of the order passed in Malkiat Singh Dahliwal’s case
(supra) be also sent to the Court of Judicial Magistrate Ist Class, Amritsar.
The trial Court while taking into consideration the the guide-lines spelt out
in Malkiat Singh Dhaliwal’s case (supra) will pass a fresh order within 15
days from he date of receipt of a certified copy of the order.
Crl.Misc.No.M-3418 of 2009 [5]
Petition is disposed off.
( KANWALJIT SINGH AHLUWALIA )
March 17, 2009. JUDGE
RC