Piara Singh vs State of Punjab

Amarjeet Chaudhary, J.

In this criminal miscellaneous under Section 482 Cr.P.C. the petitioners are seeking the quashing of summoning order dated 10.4.1990, passed by the Sub Divisional Judicial Magistrate, Zira.

The undisputed facts of the case are that a case FIR No. 81 dated 5.4.1988 P.S. Zira was registered against the petitioners on an allegedly written complaint made by Gurdit Singh son of Sadhu Singh resident of village Bhorawali. The investigation of the case was handed over to Inspector CIA Zira who found the allegations contained in the FIR to be false. Consequently, the Senior Superintendent of Police, Ferozepur, forwarded the report under Sections 173 Cr.P.C. to the Ilaqa Magistrate for cancellation of the case. The Ilaqa Magistrate took cognizance of the matter and summoned the petitioners to face trial vide the impugned order.

On a consideration of the entire matter, I am of the view that the approach of the leaned Judicial Magistrate is contrary to the provisions of the Code of Criminal Procedure. Section 190 Cr.P.C. envisages three conditions on which the Magistrate can take cognizance of any offence :

a) upon receiving a complaint of facts which constitute such offence;

b) upon a police report of such facts;

c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

In the instant case, none of the aforesaid ingredients is satisfied. As such it was incumbent upon the Court to have accepted the report of the police for cancellation of the case. What the Magistrate had to do on receipt of the report for cancellation of the case was to make an order that the case be cancelled or to make a note that he did accept the recommendations of the police. If the complainant wanted to proceed on with the case and get a judicial decision from the Court, he could present a regular complaint under Section 190 Cr.P.C. In the absence of such a complaint, the Magistrate acts without jurisdiction taking cognizance of case, there being no regular complaint before him. The abovesaid view finds support from the decision reported as Mt. Ido v. Gainda Singh, AIR 1952 Pepsu 38. Consequently the impugned order dated 10.4.1990 summoning the petitioner cannot be sustained.

For the aforesaid reasons, this criminal miscellaneous petition is accepted and the impugned summoning order dated 10.4.1990 is hereby quashed.