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BHUPINDER KUMAR & ORS versus STATE OF PUNJAB

High Court of Punjab and Haryana, Chandigarh

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Bhupinder Kumar & Ors v. State of Punjab - CRM-43060-M-2004 [2006] RD-P&H 4633 (24 July 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Crl.Misc.No.43060-M of 2004

...

Bhupinder Kumar and others Vs. State of Punjab & anr.

Present : Mr. Bipan Ghai,Advocate for the petitioner.

Mr. B.S. Baath, AAG, Punjab.

...

Prayer in this petition is, for setting aside the order dated 8.9.2004 passed by the Sessions/Special Judge, Kapurthala, whereby final report filed under Section 173(2) of the Cr.P.C. was ordered to be returned to the Investigating Agency, with a direction to present the report before a proper Court and for setting aside the order of the Sub Divisional Judicial Magistrate, Phagwara dated 6.8.2004.

Counsel for the petitioners contends that the Code of Criminal Procedure, does not contain any provision, that empowers a Court to return a report filed under Section 173(2) of the Cr.P.C. for presentation before a correct forum. It is further argued that the impugned orders would be misconstrued as a mandate to file a challan under Section 8 of the Prevention of Corruption Act.

Counsel for the respondents on the other hand submits that the report under Section 173(2) of the Cr.P.C. would only be filed after examining the report, on merits and the order of the Magistrate shall not be construed to be a mandate, to file a report under Section 8 of the Prevention of Corruption Act.

I have heard learned counsel for the parties and perused the paper book.

A challan under Section 420 read with Section 120-B of the Indian Penal Code was filed before the Sub Divisional Judicial Magistrate, Phagwara. The Magistrate, upon a perusal of the contents of the report and vide order dated 6.8.2004, arrived at a conclusion that the facts narrated in the report, disclosed the commission of an offence under Section 8 of the Prevention of Corruption Act. Consequently, the Magistrate, ordered that the file be sent to the Court of Special Judge,Kapurthala, for trial of the accused. In essence, the Sub Divisional Judicial Magistrate, committed the case for trial to the Special Court. The Special Judge, vide order dated 8.9.2004, rightly held that the Magistrate had no jurisdiction to commit the case in the absence of any provision for committal of a case under the Prevention of Corruption Act. However, the Special Court held that the aforementioned order was a mere irregularity, curable in law and therefore, proceeded to return the challan to the investigating agency, for presentation, in accordance with law. While issuing the aforementioned direction, the Special Court clearly held that no prejudice would be caused to the accused, in case the challan was returned to the investigating agency, for presentation to the proper Court. As the learned Special Court has held that no prejudice would be caused to the petitioner, the present petition does not call for any interference. The prosecuting agency, however, shall present the report under Section 173(2) Cr.P.C. upon an independent appraisal of the material on record, without being influenced in any manner by any observations made by the Sub Divisional Judicial Magistrate, in his order dated 6.8.2004. The present petition stands disposed of accordingly.

26.7.2006 ( RAJIVE BHALLA )

GS JUDGE


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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