Sudesh Kumari vs State of Punjab

Bakhshish Kaur, J.

Sarvashri Krishan Lal and Kasturi Lal sons of Prem Singh were challaned to face trial for the offences punishable under Section 307/34 IPC.

Brief facts of the case are that Mulkh Raj husband of the complainant and the accusedKrishan Lal and Kasturi Lal were partners in a threadmaking Mill. The Mill was dissolved in January, 1998. The accused had taken their share but Mulkh Rajhusband of the complainant continued with the business. The accused were not satisfied with the share. Therefore, by way of issuing notices they had been pressurising Mulkh Raj to pay more money to them.

On June 21, 1998, Anil Kumar son of the complainant came from Delhi as a meeting with the accused was fixed at the house of Krishan Lal. There the complainant and her son drank Coca Cola offered by the accused. The matter could not be settled. Therefore, they left for their home, but on the way of the complainant and Anil Kumar started shivering from a severe headache. They were taken to the hospital where they were got admitted. It is alleged that the accused had administered poison to them by mixing it in the soft drink.

On the statement of Sudesh Kumari, the present case was registered and on the receipt of the Chemical Examiner''s report, it was found that the complainant and her son Anil Kumar had never visited the house of the petitioner and that the occurrence had never taken place in the manner narrated by the complainant. Therefore, report of cancellation was submitted to the Court for approval. The learned Judicial Magistrate Ludhiana, vide his order dated May 28, 1999 accepted the cancellation report and had also ordered that the complainant shall be at liberty to file a private complaint, if she had any grievance against the accusedpetitioners. This order has, therefore, given rise to the present Criminal Revision filed by Sudesh Kumaricomplainant.

I have heard Mr. K.K. Aggarwal, learned counsel for the petitioner and Mr. D.S. Walia, learned counsel for the respondent as also Mr. I.P.S. Sidhu, Assistant AdvocateGeneral for the State of Punjab.

Mr. K.K. Aggarwal, learned counsel for the petitioner mainly contended that the offence under Section 307 IPC was triable by the Court of Session, therefore, the Judicial Magistrate was not competent to accept the cancellation report. In fact, he should have forwarded the report to the Sessions Court. Thus, the impugned order being without jurisdiction and illegal is liable to be set aside.

To my mind, the impugned order does not suffer from any infirmity or illegality. Rather, the learned Judicial Magistrate has passed the order by applying his judicial mind before accepting the cancellation report.

It is wellsettled that the Magistrate who is competent, to take cognizance of the matter, can either accept the report or after issuing notice to the complainant, he can reject the report at his own level. If the Magistrate decides not to accept the report either at his own level or on the asking of the complainant, he is to proceed under Section 173 Cr.P.C. In a case reported as Rizwan v. Waqar Ahmad and another, 1993 SCC (Crl.) 455, the police has filed chargesheet under Section 307 IPC. The Magistrate, however, having regard to the nature of the injuries, instead of committing the case, converted it into a warrant case and proceeded himself to try the case under Sections 323/324 IPC. Questioning this, a revision was filed before the Sessions Judge, who directed the Magistrate to commit the case to the Court of Session, holding that the Magistrate had no option but to commit. Consequently, the accused approached the High Court with a revision petition. The High Court allowed the Revision and confirmed the order of Magistrate. Since the question of law viz. applicability of Section 307 IPC was involved, leave to appeal was granted and their Lordships of the Hon''ble Supreme Court observed as under :

"Having gone through the judgments of both the courts below, we are unable to persuade ourselves to hold that the High Court has committed an error in allowing the revision. Section 209 of the Cr.P.C. lays down that if it appears to the Magistrate that the offence is triable exclusively by the Court of Session, then it has to commit. No doubt in the instant case, there are number of injuries on the complainant, but the Doctor found almost all of them to be simple. In that view of the matter, the Magistrate thought that it was not a fit case to commit. Therefore, it cannot be said that the High Court has erred in allowing the revision. The appeal is dismissed accordingly."

In the case in hand also, the Magistrate before whom the cancellation report was submitted, after considering the rival contentions of both the parties especially that of the complainant, not only accepted the cancellation report but also directed that the complainant shall be at liberty to file a private complaint if she has any grievance against the petitioner. Thus, the court had applied its judicial mind before accepting the cancellation report.

In the result, this petition is dismissed. The petitioner would be at liberty file fresh complaint, as has been observed by the learned Magistrate.