Balraj Singh vs State of Punjab

M.L. Koul, J.

On 18.6.1992, Harinder Kaur (hereinafter referred to as the complainant) filed a complaint in the Court of Chief Judicial Magistrate, Patiala, alleging that she is the only child of her parents and her father owns 200 Bighas of land and two trucks. Her marriage was solemnised with petitioner No. 1 Balraj Singh (hereinafter referred to as Accused No. 1) at Amar Ashram, Patiala on 2.2.1991. Before her marriage accused No. 1 in the company of other petitioners (hereinafter referred to as accused Nos. 2 to 5) made express demand of huge dowry which the father of the complainant gave at the time of the marriage of the complainant for the benefit and use of the complainant which dowry included a Maruti car purchased in the name of Balraj Singh accused No. 1. Apart from this the father of the complainant gave jewellary weighing about 40 Tolas, furniture in the shape of doublebed, a dressing table, a dinning table, Sofaset, a centre table, an iron Jhula for the lawn, apart from Texla Robotax Colour TV with remote control and glass cabin for the same, an airconditioner, imported steam press, iron almirah, two iron boxes, two trunks, two imported attache cases, a makeup box, mattresses, Videocon washing machine, mixy with juicer, three buffaloes with two calves of buffaloes, one Walaiti cow with a calf along with other cash and others articles mentioned in the list attached with the complaint.

Upon this complaint the Chief Judicial Magistrate, Patiala, on the same day, i.e. 18.6.1992 passed the following order :

"Complaint presented today. Forwarded to SHO Kotwali, Patiala, for investigation and to register to case if a prima facie case is made out against the accused. The complainant is directed to appear before SHO Patiala on 22.6.1992."

As per the order of Chief Judicial Magistrate the police swung into action and registered a case against the accused. On completion of the investigation a report under Section 173 of the Code of Criminal Procedure was filed in the competent Court of law and the accused stood charged for the offences under Section 498A of the Indian Penal Code and under Section 4 of the Dowry Prohibition Act, 1961.

The accused have moved the present petition for quashing of the proceedings before the trial court on the ground that the report made under Section 173 of the Code of Criminal Procedure wherein no specific allegations or entrustment to any of the accused, giving time, date and place of demand or return of dowry from any of the accused or refusal to return by any of them is described in the complaint and therefore the proceedings initiated by the Magistrate are illegal. Further, it is contended that the Additional Chief Judicial Magistrate has framed the charge against the accused under section 498A of the Indian Penal Code which offence has since been repealed in the year 1988 vide repealing and Amending Act 1988(Act of 19 of 1988) published in Gazette of India on 4.4.1988 which it thus illegal.

Objections have been filed by the complainant and she admits the fact that challan has been filed against the accused under the orders of the Chief Judicial Magistrate, within the concept of Section 173 of the Code of Criminal Procedure and the accused have been chargesheeted.

At the outset, I feel inclined to refer to Suresh Kumar and others v. State of Haryana and others, reported as 1996(3) RCR 137 wherein this Court in Criminal Misc. No. 15613M of 1995 has held that a police officer has to conduct the investigation of any information received by him as per the terms of subsection (1) of Section 156 of the Code of Criminal Procedure but upon a complaint received under the orders of a Magistrate has to conduct the investigation strictly in contemplation of Section 156(3) of the Cr.P.C. and make a final report to the Court concerned for taking cognizance by the Magistrate. Upon such report the Magistrate as per his judicial satisfaction can discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 of the Cr.P.C.

Mr. Cheema, learned counsel for the complainant has controverted this position of law by making a reference to a judgment of the Apex Court in State of Bihar v. Murad Ali Khan and others, reported as AIR 1989 SC 1 wherein it is held that the High Court while exercising the jurisdiction under Section 482 of the Cr.P.C. has an inherent power to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice and the power is to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate, when the evidence comes before him.

No doubt the law laid down by the Apex Court in this regard is mandatory and the High Court is not to embark upon the merits of the case whether any offence is made out or not and that can be looked into by the trial court who has to establish the charge by evidence or not. This is a case in which their Lordships of the Supreme Court were not satisfied with the quashing of the cognizance order passed by a Magistrate under the Wild Life (Protection) Act, 1972 and ordered issue of the process to the accused wherein the police after doing investigation had filed a final report that no offence was made out under section 429 of the Indian Penal Code. Their Lordships have held that the report of the police would not bar the initiation of fresh proceedings under Section 9(1) read with section 51 of the Wild Life Protection Act.

The merits of the present case are entirely different. Herein the sole question which arises for consideration and adjudication is as to whether a Magistrate can ask for the registration and investigation of the case within the purview of Section 156(3) of the Cr.P.C. The above case law laid down by the Apex Court in different context does not hold any bearing on the merits of the present case.

The basic ruling on the subject is contained in Tula Ram and others v. Kishore Singh, reported as AIR 1977 SC 2041, wherein the Apex Court has held that the legal propositions that emerge in this regard are :

"1. A Magistrate can order investigation under Section 156(3) only at the recognizance stage, is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code.

Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives:

(a) he can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.

(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.

Where a Magistrate orders investigation by the police before taking cognizance under Section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the comlaint filed before him and take action under Section 190 of the Code."

The case law referred to by the learned counsel for the complainant in H.S. Bains v. The State ( Union Territory) of Chandigarh, AIR 1980 SC 1883 is not different than that is held in Tula Ram''s case (supra). In H.S. Bains''s case, it has been held that :

"A Magistrate who on receipt of a complaint orders an investigation under Section 156(3) and receives a police report under Section 173(1), may thereafter, do one of the three things : (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be."

Having regard to the above case law, this Court is further fortified in having taken the same view in Suresh Kumar''s case (supra) that the Magistrate has no power to send a complaint to the police for registration of the case and investigation. He can simply get the investigation done by the police by way of inquiry and on the said report the Magistrate has three alternatives: he can as per his judicial satisfaction discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under Section 190 of the Cr.P.C.

As the Magistrate had no power to get the case registered against the accused and proceed into the matter as if it was a police case, therefore, all the proceedings taken by the Additional Chief Judicial Magistrate, Patiala, being illegal and contrary to law are liable to be quashed. Hence this Criminal Misc. is allowed and the proceedings taken by the said Judicial Magistrate are quashed. However, the Magistrate is at liberty to proceed with the case afresh in accordance with law as if no report was received by him from the police in the form of a challan under Section 173 Cr.P.C. for trial of the accused. The complainant is directed to cause her appearance before the trial court on the due date fixed before him.