Rakesh Kumar vs State of Haryana

V.S. Aggarwal, J.

This is a petition filed by Rakesh Kumar (hereinafter described as ''the petitioner'') seeking quashing of the FIR No. 77, Police Station Cheeka, District Kaithal. The report pertains to offences punishable under Sections 406/498A IPC.

The relevant facts alleged are that respondent No. 2 Nirmala Devi is the wife of the petitioner. She had earlier filed a complaint before the Magistrate. In that case, as per version of respondent No. 2 a compromise took place. The articles of dowry were returned. Another complaint was filed because after compromise respondent No. 2 had started living at village Uchha Chandna. The complaint which resulted in recording of the first information report is dated 29.9.1993. It was presented in the court of Judicial Magistrate Ist Class. The learned Court sent the matter to the Officerin charge of the police station for investigation under subsection (3) of Section 156 Cr.P.C. It was investigated. A report was submitted that no offence is drawn within the jurisdiction of Police Station Cheeka. When the report was received by the learned Judicial Magistrate, the Court took cognizance and directed the complainant to lead evidence. It was adjourned on two occasions for the evidence of respondent No. 2 and thereafter at the request of respondent No. 2, it was again sent to the officeincharge, Police Station Cheeka for investigation which resulted in registration of the case.

The grievance of the petitioner is that after the report had been submitted on the earlier occasions that no offence is drawn, as per the complaint within the jurisdiction of Police Station Cheeka, the Court could not again send the same to the officerincharge of the Police Station under subsection (3) of Section 156 Cr.P.C. Therefore, it is prayed that the complaint as such and the first information report that has been recorded should be quashed.

The petition has been contested by respondent No. 1 (State of Haryana). It has been contended that earlier the petitioner had filed another petition in this Court which was dismissed. The present petition is an abuse of the process of the Court. It was not disputed that earlier a report had been submitted by the officerincharge of the Police Station to the effect that neither the marriage took place within the jurisdiction of Police Station Cheeka nor any harassment was done to respondent No. 2 within the jurisdiction of Police Station Cheeka. The learned Judicial Magistrate again sent the same under subsection (3) of Section 156 Cr.P.C. Thereupon the first information report had been recorded. After investigation report had been submitted under section 173 Cr.P.C.

During the course of arguments on behalf of respondent No. 2 it had been urged that earlier petitioner and others had filed a petition for quashing of the same first information report. The same was dismissed in this Court on 16.12.1994. In fact it was held by this Court that the contention of the petitioner that the Courts at Cheeka had no jurisdiction to register the case, was without any merit. It was urged, therefore, that the second petition for quashing the same first information report is an abuse of the process of the Court.

In reply the petitioner''s counsel contended that the facts alleged in the present petition were not mentioned in the earlier petition and were not in the knowledge of the petitioner when the earlier petition was filed. Therefore, the petition is maintainable. He relied upon the decision of the Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, W.B. v. Mohan Singh and others, AIR 1975 SC 1002.

On closure scrutiny the plea of the petitioner in the facts of the present case must be held to be without any merit. In the case titled Superintendent and Remembrancer of Legal Affairs, W.B. v. Mohan Singh and others (supra) the earlier petition had been filed and dismissed on the ground that evidence was yet to be produced and, therefore, it was not desirable to interfere. Thereafter the criminal case dragged on for 11/2 years without any progress. A fresh petition was filed for quashing the proceedings. It was under these circumstances that the Supreme Court held that second petition could be entertained and inherent powers of the High Court could be invoked. It was observed :

"The facts and circumstances obtaining at the time of the subsequent application of respondents Nos. 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years. It was for this reason that, despite the earlier order dated 12th December, 1968, the High Court proceeded to consider the subsequent application of respondents Nos. 1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 516A. This the High Court was perfectly entitled to do and we do not see any jurisdictional infirmity in the order of the High Court. Even on the merits, we find that the order of the High Court was justified as no prima facie case appears to have been made out against respondents Nos. 1 and 2".

The position in the present case is totally different. As mentioned above and rementioned at the risk of the repetition, the earlier petition had been filed seeking quashing of the same first information report. The pleas available to the petitioner were taken. The petition was dismissed. it cannot be that one keeps other pleas in reserve and thereafter file a fresh petition. When there are no subsequent facts, a fresh petition would ordinarily be termed to be an abuse of the process of the Court.

As regards the contention that the petitioner was not aware that the trial Court had sent the matter for fresh investigation under subsection (3) of Section 156 Cr.P.C., again there is no merit. In paragraph 12 of the petition the petitioner mentioned about filing of the earlier petition as stated :

"12. That previously petitioner filed Criminal complaint as Cr. Misc. No. 19658M of 1994 challenging that no offence is made out under Sections 406 and 498A IPC and as such the FIR No. 77 of 1994 be quashed but the learned Hon''ble Mr. Justice V.K. Jhanji dismissed the said petition on 16.12.1994 and at that time the petitioner did not take all the objections regarding the passing of the order Annexure P5 and registration of case, Annexure P1 on that basis."

Perusal of the same indicates that petitioner had no where contended that he was not aware of these facts when earlier petition was filed. Consequently, what is being urged, necessarily has to be termed as one without merit.

Be that as it may be, even if the contention of the petitioner that the learned Magistrate could not have sent the case again under subsection (3) of Section 156 Cr.P.C. is looked into, the net result is the same.

To appreciate the same, the facts as alleged can be relisted. When the complaint was presented, the learned Judicial Magistrate had sent the complaint to officerincharge, Police Station Cheeka under subsection (3) of Section 156 Cr.P.C. It was adjourned to 6.12.1993. The officerincharge, Police Station submitted a report (Annexure P 3) to the effect that neither the marriage was solemnised within the jurisdiction of Police Station Cheeka nor she was harassed within the said jurisdiction of the Police Station. Therefore, the matter had not been further investigated. When the report was received by the learned Judicial Magistrate on 17.1.1994 on behalf of respondent No. 2, it had been submitted that a wrong report has been filed. There were some adjournments but finally on 22.8.1994, the learned Judicial Magistrate had sent the matter again for further investigation to the officerincharge, Police Station Cheeka in exercise of the powers under sub section (3) of Section 156 Cr.P.C.

The facts clearly reveal that the officerincharge Police Station Cheeka had not investigated the contents of the complaint. As mentioned above, this Court in the earlier criminal miscellaneous petition, filed by the petitioner and other held that the contention of the petitioner that the Courts at Cheeka had no jurisdiction to register the case, had been rejected. There was thus no a legal bar for further investigation on merits of the contents of the complaint.

Section 156 of the Code of Criminal Procedure reads :

"156. Police Officer''s power to investigate cognizable case. (1) Any officer in charge of apolice Station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."

This provision reproduced above shows that the officerincharge of a police station without the order of the Magistrate may investigate any cognizable case. Subsection (2) of the Section 156 Cr.P.C. is in the form of a proviso to Section 156 Cr.P.C. It provides that no proceedings of a police officer can be called into question on the ground that such officer was not empowered under the said section to investigate. Subsection (3) of Section 156 Cr.P.C. saves the powers of the Magistrate under Section 190 Cr.P.C. He can order such an investigation contemplated under Section 156 Cr.P.C. It is clear, therefore, that there is no restriction on the powers of the Magistrate to send the case to the officerincharge of the Police Station for re investigation.

In this regard reference with advantage may be made to the decision of the Supreme Court in the case of State of Bihar and another v. J.A.C. Saldanha and others, AIR 1980 SC 326. With respect to the powers under subsection (3) of Section 156 Cr.P.C., the Court held that the said powers are independent of the other powers of the police officers. These can be exercised even when the report is submitted by the investigating Officer. In paragraph 19, it was held :

"The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under section 156(3) can be exercised by the Magistrate even after submission of the report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer or further investigate the case even after submission of the report as provided in Section 173(8)."

The said decision of the Supreme Court was noted with approval in the subsequent decision State of Haryana and others v. Bhajan Lal and others, 1991(1) RCR (Crl.) 383 : AIR 1992 SC 604.

In the present case in hand when the earlier investigation report was confined only to the question of jurisdiction, there was no reason as to why the learned Judicial Magistrate could not direct further investigation under subsection (3) of Section 156 Cr.P.C. There is no error apparent on the face of the record or illegality. There is no ground thus to interfere.

For these reasons, the petition being without merit fails and is dismissed.