Smt. Prem Wati vs State of U.P. and Another

S.K. Phaujdar, J.—The matter was heard on 7.7.1998.

Through this application u/s 482, Cr. P.C. the applicant desires that the entire proceedings in Lal Singh v. Jeewan Lal and others, Complaint Case No. 2188 of 1997, under Sections 147, 323, 504 and 506, I.P.C. be quashed, which is now pending before the Ist Addl. C.J.M., Bulandshahr. It was argued that the complainant (Respondent No. 2) initially made a prayer before the criminal court for an action u/s 156(3), Cr. P.C. and the Court was pleased to call for a report from the police, and on receipt of the report the prayer was dismissed. Subsequent thereto, and suppressing the fact of filing the above application, the complainant filed a complaint on the self-same allegation. The complainant was examined. His two witnesses were also examined and upon such statements, cognizance was taken. It was contended that the second complaint was untenable in law and was also bad for suppression of material facts from the Court. It was further contended that the instant case was a counter-blast to certain cases filed at the instance of the present applicant against her husband and in-laws. So far the question of mala fide as alleged in the second submission, it can only be stated that matrimonial dispute had given rise to different incidents and it would be too early and hence improper to give an opinion regarding the truth or otherwise of the present case at this stage and, that too, by a Court whose powers u/s 482, Cr. P.C. have been invoked.

The point raised regarding competence of the complaint is, however, worth consideration. It was contended that when an application is filed for action u/s 156(3), Cr. P.C., it was at best a complaint and when the Magistrate directed submission of a police report, it could legally be interpreted that an investigation as thought of u/s 202, Cr. P.C. was really directed. When the Magistrate declined to take action upon receipt of the police report, the order should be read as one u/s 203, Cr. P.C. and, as such, the second complaint was barred. The contention of the learned Counsel that the application for action u/s 156(3) must be read as a complaint is not acceptable because the simple prayer therein was not for proceeding u/s 200, Cr. P.C. and, in fact, the Court did not proceed u/s 200 as he did not examine the complainant at all. The direction for submission of a police report cannot. therefore, be read as directing an investigation u/s 202, Cr. P.C and, in fact, the order of the Magistrate makes it clear that he had declined to take action u/s 156(3) only and there is no reference to his refusal to summon the accused persons or dismissing the complaint.

Even though it is conceded for the sake of argument that it was treated as a complaint and an investigation was directed u/s 202, Cr. P.C. and thereafter an order u/s 203, Cr. P.C. must be deemed to have been made by the rejection of the prayer u/s 156(3), a second complaint is not barred. In this contest, we may refer to Section 300, Cr. P.C. This section speaks of bar to a second trial in respect of an offence for which an accused has already been convicted or acquitted. An Explanation to this section speaks that the dismissal of a complaint or the discharge of the accused is not to be read as an acquittal for the purpose of this section. This Explanation, in my view, makes the point clear that mere dismissal of a complaint may not bar the second complaint on the same facts.

This may be looked into from another angle. When the Magistrate received the report of the police, he relied on the opinion of the police given on materials collected by it but in taking action u/s 204, Cr. P.C., the Magistrate had acted on the statements given before it by witnesses on oath. If the Magistrate had preferred the statements on oath made before him to the statements said to have been made before the police, the action may not be challenged prima facie. The question of suppression is certainly an act to be taken note of while appreciating the evidence at the trial stage, but it may not take away the prima facie weight of the statements of the three witnesses examined before the Magistrate.

The objections were raised on behalf of the present applicant before the Court below concerning the order summoning them in the concerned case. This prayer was also disposed of on 25.4.1998 through a speaking order.

I find no reason to interfere either with the order of cognizance or summoning or even with order dated 25.4.98. In the result, the present application stands dismissed.