ORDER
VIKRAMADITYA PRASAD, J.
1. This is a petition for quashing the order dated 15.7.2002 passed by the Chief Judicial Magistrate, Dumka in PCR Case No. 272/0.1, GR No. 362/02, whereby and whereunder the learned Chief Judicial Magistrate has taken cognizance of the offence under Section 147/500/503/ 504, IPC.
2. It transpires that one Balram Bhagat had filed a complaint against the petitioner alleging, inter alia, that though there was no order restraining the complainant, but the accused of that case (petitioner here) misled the police that there was an order of the Court and consequently got the work stopped and because of the stoppage of the work, there was loss caused to the complainant, besides he also intermediated him and threatened the masons working there.
3. Since the offence disclosed was non-conginzable, it appears that the learned Chief Judicial Magistrate referred it to the police for investigation. It further transpires that after investigation, the police submitted charge-sheet of the offence under Section 182/147/500/509/504, IPC against the accused Ramanand Sah and thereon, the learned Magistrate passed the following order :–
“15.7.2002 Abhiyukt Ramanand Sah ka Pratinidhitwa Hai Jise Aaj Matr ke Liye Swikrit Kiya Jata Hai Aarop Patr Dhara 182/147/500/509/504 Bha. Da. Vi Ke Antargat Ablayukt Ramanand Sah ke Birudh Prapt Hua. Parantu Anusandhan Karta Dwara Alag Se Dhara 182 Bha. Da. Vi Ke Antargat Se Abhiyog Chalane Hetu Alag Se kisi Prakar ka Awedan Diya Gaya Hai. Aarop Patr Tatha Case Diary Ke Awlokan Se Abhiyukt Ke Birudh Dhara 147/500/503/504 Bha. Da. Vi. Pratham Drastya Me Sahi Pratit Hota Hai.
Atah Bad Me Dhara 147/500/503/ 504 Bha. Da. Vi Ke Antargat Abhiyukt Ke Birudh Apradh Ka Sangyan Liya Jata Hai Tatha Abhilekh Nispadanarth Shri S.K. Choudhary, Nya. Danda. Dumka ki Sanchika Me Maine Bheja Jata Dinak 17.8.2002 Ke Purb Abhilekh Ukt Nyayalaya Awash Bheje Hain.”
Thus, the order passed is in two parts-first the learned Magistrate took cognizance of the offence under Section 147/500/503/ 504, IPC and secondly, he refused to take cognizance under Section 182, IPC on the ground that no complaint was filed by the Police Officer.
4. Learned counsel for the petitioner assailed the order on the ground that the impugned order had been passed in a mechanical manner without application of mind and not considering the fact that the civil suit was pending between the parties and that the opp. party in this case is a practising lawyer, who is trying to pressurize the petitioner, who is a doctor by profession.
5. There is no law that when civil suit is pending between the parties, no criminal case, inter se, can be entertained. That is a matter of appreciation of evidence whether the case was lodged falsely because of a civil litigation being pending. Law is that if the case is non-cognizable, the Magistrate, on receipt of the complaint, may send it to the police for investigation. Originally, the information, that was given to the Chief Judicial Magistrate in the form of the complaint, disclosed the offence under Sections 503 and 504, IPC and the learned Magistrate has committed no illegality in referring it to the police for enquiry into the matter and if, on enquiry, the police found prima facie case and submitted charge-sheet, it is not against the law or illegal. The police also submitted charge-sheet under Section 182, IPC as stated above. Section 195(a)(i), Cr PC provides that if an offence under Section 182, IPC is made out, then it is the public servant to whom false complaint is made or his subordinate who is competent to file the complaint and in absence of such complaint under this section, no cognizance can be taken. Consequently, the learned Chief Judicial Magistrate has said in the impugned order that as the complaint has not been filed by the Police Officer concerned, no cognizance of the offence under Section 182, IPC could be taken.
6. Now the question is whether, in a charge-sheet, which is the result of the compliant case referred for investigation by a Judicial Magistrate, and in which Section 182, IPC is also included as an offence having been committed, that becomes the complaint by the Police Officer, who was given the false information?
The Police Officer was required to enquire into the allegations made into the complaint and to submit the charge-sheet and if he found that the allegations were prima facie correct on the basis of the evidence collected by it or there was strong suspicion, then he could file the charge-sheet with regard to the offence, which was committed in respect, of the complaint and therefore, the inclusion of Section 182, IPC in that very charge- heet is not justified because if this view is taken, then private complaint itself, in fact, will amount to be complaint under Section 182, IPC though there being no complaint by the Public Servant, who was given false information. Therefore, the Chief Judicial Magistrate acted legally, when he said that no cognizance under Section 182, IPC could be taken in absence of any complaint by the Public Servant, who was given false information.
7. But that is not the crux of the matter here. The crux of the matter is whether the cognizance can be quashed of even of those offences, which do not come under the mischief of Section 182, IPC.
I have already stated that the complaint was filed and the same was referred to the police for investigation and the police submitted the charge-sheet.
At this stage, the learned counsel for the petitioner insisted that the case diary has come and on perusal of it, it will appear that no case is made out even under Sections 503 and 504, IPC.
I have carefully gone through the case diary. In para 2, there is restatement of the complaint. In that statement, the complainant has simply stated that the work was got stopped, he has not even stated that any person was threatened or criminally intermediated. Then in para 5, there is evidence of witness, Ujjal Kumar, who has denied to have any knowledge of the occurrence. Similarly, there is evidence of Jitendra Nath Gupta in paras 6 and 7, who also declined to have any information regarding the evidence. Witness, Ashok Mandal in para 9 also said aforesaid fact that he dose not know anything. Similar is the statement of Kanai Mandal and Ful Chand Rai in paras 11 and 12 respectively of the case diary. Then one Anil Kumar, ASI, whose statement is in para 14, said that the work was only got stopped. More than this, there is nothing in the cast diary.
8. Learned counsel for the opp. party argued that the Magistrate can differ with the finding of the Investigation Authority and take his independent decision.
There could be no dispute on it. It is also the settled principle of law. But the Magistrate has to take decision on the facts that have been collected in the case diary. In absence of any material in the case diary, though charge-sheet was submitted, then only course open to him, if he wanted to differ, was to redirect for further investigation, but not to take cognizance as the material did not suggest it. In the aforesaid circumstances, I am not inclined to accept the view of the learned counsel for the opp. party that the Magistrate, after applying his independent mind, took cognizance for the simple reason that there was no material in the case diary for applying the mind on the part of the Magistrate, rather non-application in the application of mind and is entertained by plain acceptance.
9. Another argument advanced by the learned counsel for the opp. party is that earlier the opposite party-complainant had made several petitions but the police was not taking note and therefore he had filed the complaint and in the aforesaid circumstances, the police did not investigate the matter properly.
If it was so, then when the learned Magistrate was referring the complaint to the police itself, which was hostile to the opp. party, then at that very time, protest should have been filed. In that circumstances, the contention that has been raised by the learned counsel for the opp. party here would have legal and valid reasons but whether the police was hostile to the opp. party is not a matter to be taken note of even under Section 482, Cr PC. This application is allowed and the order taking cognizance is set aside.