Loading...

Phoolchand Mishra vs State Of M.P. on 10 May, 2002

Madhya Pradesh High Court
Phoolchand Mishra vs State Of M.P. on 10 May, 2002
Equivalent citations: 2002 (5) MPHT 211
Author: N S “Azad”
Bench: N S “Azad”


ORDER

Narain Singh “Azad”, J.

1. Feeling aggrieved by the order of taking cognizance of an offence under Section 190(1)(b) of the Code of Criminal Procedure, hereinafter referred to as the Code, passed by J.M.F.C., Jabalpur, in Criminal Case No. 475/99 on 31-3-2001, the petitioner has knocked the door of this Court, seeking discharge in exercise of inherent powers, when his subsequent objection raised under Section 461(m) of Code was turned down on 14-3-2002.

2. A perusal of certified copy of order dated 22-10-1999 passed by Ku. Tripti Kholia, J.M.F.C., Jabalpur, in Criminal Case No. 475/99, discloses that on 22nd October, 1999, a police report under Section 173 of the Code of Criminal Procedure, was filed against one Devendra Kumar Dubey, by Police Madan Mahal, Distt. Jabalpur, for offences punishable under Sections 420, 467 and 468 of the IPC with these allegations that he prepared a false Revenue Case No. 2645-A/90 (b-9)/89-90 and forged an order dated 12-5-1990, purporting to have been passed by Competent Authority, Urban Land Ceiling Act, 1976, hereinafter referred to as the Act, permitting sale of some land. According to the prosecution, Devendra Kumar forged a notification purported to have been issued under Section 26 of the Act, 1976, by forging the signatures of competent authority appointed under the Act and thereby made an attempt to sell the land of his possession. This notification was submitted to the Competent Authority by one Laxmi Narayan Dubey. On an enquiry, the fact of forgery came to the knowledge of the Competent Authority under the Act, who lodged the FIR at Police Station, Madan Mahal, Jabalpur. During the course of investigation, specimen signatures of this petitioner Phoolchand were obtained and sent to the Government Examiner of Questioned Documents, Police Headquarters, Bhopal, on 13-11-1995, along with his standard hand-writing and questioned signatures. In report dated 16-4-1996, the Government Examiner of questioned documents, opined that the questioned hand-writing (signature) appears to be that of this petitioner Phoolchand Mishra. Police, Madan Mahal did not file this report of Govt. examiner of questioned documents dated 16-4-1996, along with Police report submitted under Section 173 of the Cr.PC. A photocopy of certified copy of order dated 18-10-2001 passed by IInd ASJ, Jabalpur, in petitioner’s Criminal Revision No. 280/2001, reveals that the learned Magistrate called the report of State Examiner of Questioned Document before the stage of framing the charge and thereafter by order dated 22-104999 while discharging Devendra Kumar Dubey, this petitioner was ordered to be proceeded with under Section 319 of the Code, by her.

3. On notice been served, the petitioner appeared before the Court of J.M.F.C. on 28-3-2001. The same day petitioner’s Counsel was heard on show-cause notice and the case was fixed for orders on 31-3-2001. On 31-3-2001 the learned J.M.F.C. passed an order to the following effect:–

“In order dated 22-10-99 though it is stated that said Phoolchand has to be proceeded against under Section 319 of the Cr.PC but at present, it seems desirable to take cognizance against him under Section 190 of the Cr.PC.”

4. Then this petitioner filed an objection in aforesaid Criminal Case No. 475/99, seeking his discharge on the ground that the learned J.M.F.C. could not have taken cognizance against him under Section 190 of the Cr.PC. This objection petition stood disposed of by J.M.F.C., on 16-8-2001, wherein, she framed charge also against this petitioner under Section 468 of the IPC. The petitioner unsuccessfully challenged the order dated 16-8-2001 in Criminal Revision No. 280/2001, before IInd A.S.J., Jabalpur, who recorded this finding on 18-10-2001 that at the time of taking cognizance against this petitioner under Section 190 of the Code, stage of taking the cognizance was not crossed and hence merely by making an observation in order dated 22-10-1999, that the petitioner has to be proceeded under Section 219 of the Code, the order of taking cognizance is not found to have been vitiated.

5. Thereafter, this petitioner sought quashment of proceeding in Criminal Case No. 475/99, by filing an application under Section 461(n) of the Code, which again was rejected by the learned J.M.F.C. on 14-3-2002. Now the petitioner seeks quashment of aforesaid Criminal Case No. 475/99, in exercise of inherent powers, on the strength of R.C. Kumar and Ors. v. State of Andhra Pradesh and Anr., reported in XII-1990 (3) Crimes page 678, wherein, it is found explained that in case where cognizance of an offence under Section 190 of the Code is taken on police report filed against one person, the other person cannot be impleaded on the basis of same police report merely on an application moved by Public Prosecutor, because after crossing the stage of Section 190 of the Code, the impleadment of other person as accused is permissible under Section 319 of the Code only and that too, after taking at least some evidence of the prosecution.

6. But it is found explained by P.C. Sarkar in VIIth Edition on his commentary on Code at page 563, under Section 190 that upon receipt of a police report under Section 172(2), a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code, even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during investigation and take cognizance of the offence complained of and order the issue of process to the accused. It is also found explained that the Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. In support of aforesaid view, the learned author has referred following part of Paragraph 15 of SCC of Abhinandan, reported in A. 1968 SC 177:–

“If ultimately the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence under Section 190(1)(b) notwithstanding the contrary opinion of the police expressed in the final report.”

Then, similar view is taken by the Apex Court in India Carat Pvt. Ltd. v. State, reported in A. 1989 SC 885 : 1989 Cr.LJ 963, the relevant portion runs as under:–

“Upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer given an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused.”

7. Further, it is dictated by their Lordships of the Supreme Court in Raghubans Dubey v. State of Bihar, reported in AIR 1967 SC 1167, that :–

“In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.”

Then in Hareram Satpathy v. Tikaram Agrawala and Ors. reported in AIR 1978 SC page 1568, it is explained that :–

“Where the Magistrate after taking cognizance of the offence and perusal of the record and having been satisfied that there were prima facie grounds for issuing process against certain persons not mentioned in the police report, issued process against them, the Magistrate could not be said to have exceeded the power vested in him under law.”

It is further found explained by their Lordships in Paragraph 7 at page 1570, that:–

“From the foregoing it is crystal clear that under Section 190 of the Code of Criminal Procedure the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually the offenders involved in the case might have been has to be decided by the Magistrate after taking cognizance of the offence.”

8. It is also found explained by Sarkar at page 561, under Section 190 that the Magistrate cannot take cognizance of the offence under Section 190(1)(b) on a preliminary or incomplete challan under Section 170. Since at the time of filing police report against Devendra Kumar Dubey, the Police Madan Mahal, did not file the report dated 16-4-1996 to Government Examiner of Questioned Documents, therefore, on Magistrate’s consideration of Police report after its receipt and then issuance of show-cause notice to this petitioner, against his impleadment as an accused, though making reference of proceeding against him under Section 319 of the Code, shall be treated to be the stage of taking cognizance under Section 190(1)(b) of the Code.

9. Thus, the learned J.M.F.C. is found to have committed no illegality in this case by taking cognizance of offence punishable under Section 468 of the IPC against this petitioner on 31-3-2001, under the aforesaid circumstances in spite of making this observation in order dated 22-10-1999, that the petitioner has to be proceeded under Section 319 of the Code.

10. In result, in the absence of patent illegality or miscarriage of justice, no case for interference in exercise of inherent powers is found to have been made out and hence this petition deserves to be disallowed and rejected, which stands disposed of accordingly.

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information