Kameshwar Rai vs The State of Bihar and Others

Shivaji Pandey, J.—Heard learned counsel for the petitioner and learned counsel for the State. In this case the petitioner is challenging the order dated 20.1.2010, passed in Criminal Revision No. 57 of 2008 by the learned 1st Additional Sessions Judge, Madhepura whereby and whereunder he has set aside the order dated 18.3.2006 passed in Complaint Case No. 591 of 2006 by the Chief Judicial Magistrate, Madhepura whereby he has referred the matter to the concerned police station for fresh investigation.

From the record it appears that the petitioner has instituted a case vide Madhepura P.S. Case No. 18 of 2006 for the offences under Sections 447, 429, 467 and 468 of the Indian Penal Code. Allegation has been made that the informant is in possession of the land appertaining to Jamabandi No. 1836. It has been alleged that the accused persons tried to disturb the possession and when it was objected, allegation has been made that the accused persons gave blow by spade but could escape. It has been further alleged that the accused persons wanted to grab his property and for that they have created a false and fabricated rent receipt of disputed land. It has been further alleged that Shanti Devi used to threaten that she would trap the petitioner in a false rape case. The case was investigated by the police and after investigation a final form was submitted showing the case to be a civil nature between the parties.

A protest petition was filed on behalf of the informant with the allegation that the police did not investigate the case in a proper angle but under the influence of the Inspector General of Police. Darbhanga Range although there are sufficient materials available on record against the accused persons but submitted the final form. It also appears from the record that protest petition was filed by the informant while the case was under investigation and the learned Chief Judicial Magistrate, Madhepura accepted the final form and after hearing the parties directed the protest petition to be registered as complaint petition. On 22.9.2006 protest petition was registered as complaint petition bearing Complaint Case No. 591 of 2006 and the case was fixed for solemn affirmation of the informant/complainant. While the matter was pending for solemn affirmation the petitioner filed a criminal revision before the Sessions Court vide Criminal Revision No. 125 of 2006 against the order dated 13.9.2006 passed by the learned Chief Judicial Magistrate accepting the final form but it appears that the aforesaid criminal revision application resulted in dismissal.

It further appears that the petitioner has filed a criminal writ before this Court vide Cr. W.J.C. No. 324 of 2007 and this Court vide order dated 22.1.2008 has passed the following order:--

This grievance can be taken care of by the learned Magistrate if the petitioner approaches the learned Magistrate by filing protest-cum-complaint and persuade the learned Magistrate concerned to issue appropriate direction and with this observation, this application is disposed of, however, with liberty to the petitioner to approach the State Government against the malicious conduct of respondent no. 5 in the light of Annexures-9 and 10 appended with the rejoinder affidavit.

When the order of this Court was placed before the Chief Judicial Magistrate, he vide order dated 18.3.2006 has passed the order for fresh investigation.

The aforesaid order was challenged by the opposite party vide Criminal Revision No. 57 of 2008 and the revisional court by the impugned order set aside the order dated 18.3.2008 and the Sessions Court was of the opinion that the learned Chief Judicial Magistrate has fallen in error in giving direction for fresh investigation. The learned Sessions Judge is of the view that the Chief Judicial Magistrate should have made an enquiry on protest petition as the Sessions Court was of the view that when the complaint was in existence and case is pending for solemn affirmation of the complainant/informant then he should have acted in accordance with law as provided u/s 202 of the Code of Criminal Procedure (hereinafter referred to as "the Code") but he has rejected the revision petition on the ground of locus standi.

Learned counsel for the petitioner has challenged the order of Sessions Court and submitted that the Sessions Court should not have interfered with the order of the Chief Judicial Magistrate as he has acted as per the direction of this Court and in accordance with law. He further submits that Annexure-1 to the petition itself shows that direction for fresh investigation has been passed in term of the order of this Court and as such there is no irregularity in the order of the Chief Judicial Magistrate.

In course of argument it has been submitted that in the criminal writ petition the petitioner had challenged the order of the revisional court passed in Criminal Revision No. 125 of 2006 whereby the Sessions Court had rejected the revision application which was filed against the order of the Chief Judicial Magistrate accepting the final form and asking the petitioner to come with solemn affirmation in Complaint Case No. 591 of 2006 which was registered after the acceptance of the final form. This Court requested the learned counsel for the petitioner to produce the copy of the said criminal writ petition and he was kind enough in handing over the copy of the said criminal writ petition. He has further submitted that during investigation sufficient materials were collected by the Investigating Officer but under the influence of the Inspector General of Police, Darbhanga Range the Inspector has submitted the final form treating the dispute as civil dispute whereas it is completely a criminal dispute in between the parties. He has further submitted that the Sessions Court has fallen in error in giving direction the Chief Judicial Magistrate to proceed with the complaint petition which is in contravention with the direction issued by this Court in the said criminal writ petition. In support of his contention he has relied on the judgment in the case of Anand Swaroop Sharma and Others Vs. State of U.P. and Sri Brij Bhushan Parasher Sharma, .

The submission of the learned counsel for the petitioner has been disputed by the counsel for the State and he has submitted that the Sessions Court has adopted the right course in giving direction to proceed with the matter as provided u/s 202 of the Code. He has further submitted that there was no direction by this Court to the Chief Judicial Magistrate for fresh investigation in the matter rather the direction has been given to approach before the learned Magistrate by filing a protest petition and persuade the learned Magistrate to issue appropriate direction.

Having considered the rival contention of the learned counsel for the parties for coming to a right conclusion it is desirable to examine the relevant provisions of the Code. Section 154 of the Code deals with the institution of the First Information Report and Section 173 of the Code deals with the submission of the final form by the police after investigation Section 200 onwards in Chapter-XV of the Code deals with the complaint petition. The police after investigation may submit charge-sheet or final form but the Magistrate is not obliged to accept the report of the police. In case of submission of final form the Magistrate can differ with the police report and take cognizance of the offence as this principle has been enunciated by the Hon''ble Supreme Court in the case of Abhinandan Jha and Others Vs. Dinesh Mishra, , where the Hon''ble Supreme Court has held that the Magistrate is not bound to accept the report of the police. This view has been reaffirmed in the case Dr. Mrs. Nupur Talwar Vs. C.B.I., Delhi and Another, and Vasanti Dubey Vs. State of Madhya Pradesh, . The next case comes when the police files the final form, then in that circumstance, the Chief Judicial Magistrate may accept the final form and treat the protest petition as complaint petition and may ask the informant/complainant to come to the court for solemn affirmation along with supporting witnesses and the court will proceed with the matter as provided in Chapter-XV of the Code.

In the present case the police has submitted the final form that was accepted by the Chief Judicial Magistrate and asked the complainant to come with solemn affirmation but the complainant/informant has challenged the order refusing to take cognizance and the revision application filed by the petitioner was rejected. On perusal of the criminal writ petition it appears that the petitioner has not basically challenged the order of the revisional court rather there was prayer for fresh investigation making an allegation that the investigation was distorted at the behest of Inspector General of Police, Darbhanga Division. The prayer was made for taking an appropriate action against the erring Officer and provide the protection and security to the person and property of the petitioner.

From the order it appears that this Court has not directed the Magistrate for issuing direction of fresh investigation rather it appears from the order that this Court has given direction to approach the Magistrate by filing a protest petition-complaint petition for issuance of proper direction and at the same time the petitioner was advised to approach the State Government against the malicious conduct of respondent no. 5 in the light of Annexures-9 and 10 of that criminal writ petition. This Court has virtually given direction to proceed with the complaint petition as provided under Chapter-XV of the Code. The judgment relied by the learned counsel for the petitioner in the case of Anand Swaroop (supra) where the Hon''ble Allahabad High Court has held that when a final report is submitted and against the final report the complainant filed a fresh petition and on that protest petition the learned Magistrate passed the order treating the protest petition as complaint and for recording statements of the complainant and witnesses. Such an order could be passed only in that contingency when there was no evidence against the accused persons in the case diary and the court has considered and found that there was sufficient evidence in the case diary to proceed with the matter and has held that there was no question of treating the protest petition as complaint petition nor statements of the complainant and the witnesses under Sections 200 and 202 of the Code were to be recorded after investigation. In this case the situation is quite different. The petitioner has challenged the order of the Chief Judicial Magistrate refusing to take cognizance in Criminal Revision No. 125 of 2006 and that was dismissed and thereby it has reached to the finality and the criminal writ petition which does not show that the petitioner has challenged the order of refusing to take cognizance rather the prayer was made for fresh investigation by the police in the matter. So in that circumstances there was no question of re-opening the matter again with regard to taking of cognizance. There cannot be any quarrel that order of the Chief Judicial Magistrate refusing to take cognizance can be challenged in higher court and if the higher court finds sufficient materials available in the case diary, the revisional court can set aside the order and give a direction to the Magistrate to pass the order in accordance with law but in the present case the petitioner himself left the Criminal Revision No. 125 of 2006 and before the Magistrate only he was left with complaint petition-cum-protest petition vide Complaint Case No. 591 of 2006 and proceed as provided under Chapter-XV of the Code.

The aforesaid view is substantiated from the judgment reported in Phulena Prasad Vs. The State of Bihar and Others, as in this case it has been held that the Magistrate cannot take both recourses as provided u/s 202 of the Code which is "either to enquire into the case himself or direction investigation". Here in this case the Magistrate has asked the petitioner to come to the court for solemn affirmation and that order is still in force and at the same time the court below has directed for fresh investigation when there is no direction to the Chief Judicial Magistrate for fresh investigation by police.

In view of the aforesaid discussion this Court finds that the order of sessions court cannot be said to be suffering from any illegality and accordingly this Court does not find any error in the impugned order. However, the petitioner can proceed with the Complaint Case No. 591 of 2006 as provided in Chapter-XV of the Code and the court of the Magistrate will act in accordance with law. With the aforesaid observation this application is dismissed.