High Court of Punjab and Haryana, Chandigarh
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Kuldeep Singh & Anr v. State of Punjab & Anr - CRM-18769-M-2000  RD-P&H 6999 (12 September 2006)
Crl. Misc. No. 18769-M of 2000
DATE OF DECISION : 13.09.2006
Kuldeep Singh and another
State of Punjab and another
Crl. Misc. No. 35402-M of 2000
DATE OF DECISION : 13.09.2006
Bhajan Singh and others
State of Punjab and another
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
Present: Mr. Pawan Sharma, Advocate,
for the petitioners.
Mr. N.S. Gill, AAG, Punjab.
* * *
This order shall dispose of Crl. Misc. No.18769-M of 2000 filed by Kuldeep Singh and his brother Devinder Kumar alias Devinder Singh and Crl. Misc. No. 35402-M of 2000, filed by Bhajan Singh and others. Both these petitions are arising out of the order dated 10.8.1998, passed by Judicial Magistrate Ist Class, Ferozepur, whereby in a private complaint filed by respondent No.2, the petitioners have been summoned to face trial under Sections 379, 148/149, 120-B IPC and Section 25 of the Arms Act. In these petitions, the prayer is for quashing of the complaint as well as the summoning order.
2. The only argument raised by learned counsel for the petitioners is that when the Judicial Magistrate, after hearing the complainant, accepted the cancellation report submitted by the police in case FIR No. 12 dated 27.1.1994 under Sections 382/149 IPC and 25/27 of the Arms Act, registered at Police Station Ferozepur Cantt, on the complaint of Nachhatar Singh, driver of respondent No.2, then the Judicial Magistrate cannot take cognizance of an offence on the complaint filed by respondent No.2 on similar allegations. Learned counsel submits that taking cognizance on such a complaint and summoning the petitioners as accused will be an abuse of process of law and will amount to double jeopardy. In support of his contention, he has relied upon a decision of this Court in Mahant Amar Dass v. State of Punjab and another, 2006 (1) RCR (Criminal) 971.
3. After hearing the arguments of learned counsel for the parties, I do not find any substance in the only argument raised by learned counsel for the petitioners.
4. The facts in this case are not disputed. Earlier, on a complaint made by driver of respondent No.2, FIR No. 12 dated 27.1.1994 under Sections 382/149 IPC and 25/27 of the Arms Act, was registered against the petitioners at Police Station Ferozepur Cantt. After the investigation, the allegations levelled in the FIR were found to be false and the police submitted cancellation report to the court, which was accepted by Judicial Magistrate Ist Class, vide order dated 7.2.1994, after giving opportunity of hearing to the complainant. The complainant did not challenge the said order. However, thereafter, he filed the instant complaint on the same allegations. After preliminary evidence, led by respondent No.2- complainant, the petitioners have been summoned by the Judicial Magistrate to face trial under Sections 379, 148/149, 120-B IPC and Section 25 of the Arms Act.
5. The question for consideration in this case is whether a Judicial Magistrate, even after accepting the final report filed by the police, can still take cognizance of an offence upon a complaint on the same or similar allegations of fact. In my opinion, the legal position on this question has already been settled and many judgments are available, which lay down that a Judicial Magistrate, even after accepting the final report in an FIR case can still take cognizance of an offence upon a complaint made by the complainant on same or similar allegations of fact. In this regard, a Division Bench decision of the Patna High Court in Munilal Thakur and others v.
Nawal Kishore Thakur and another, 1985 Criminal Law Journal 437 can be referred. In that case, the aforesaid question was referred to a Division Bench, as the correctness of a Single Bench decision of the same High Court in Bhuneshwar Prasad Sinha v. State of Bihar, 1981 Criminal Law Journal 795 was doubted. The learned Single Judge in Bhuneshwar Prasad Sinha's case took the view that if the Magistrate agrees with the opinion of the police and accepts the cancellation report and closes the proceedngs, then it will be taken that the proceedings against the accused persons in respect of the facts constituting the offence have been closed by the Magistrate in a judicial proceeding and such proceedings can only be set aside in revision by the higher authority. Unless and until the order is set aside, the Magistrate is not entitled to take cognizance on the basis of the complaint in respect of the same facts constituting the offence. Against the judgment of the learned Single Judge, the appeal was filed in the Supreme Court in Gopal Vijay Verma v. Bhuneshwar Prasad Sinha, 1982 (3) SCC
510. The Supreme Court, while setting aside the said judgment, held that the High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report. After taking into consideration the said decision and the other decision of the Supreme Court in H.S. Bains v. State (Union Territory of Chandigarh), AIR 1980 SC 1883, the Division Bench of the Patna High Court answered the aforesaid question in affirmative and held that a Magistrate, even after accepting the final report, can still take cognizance of the offence upon a complaint on same or similar allegations of fact. Similar view was taken by this Court in Wazir Singh and others v. Babu Ram 1983 (2) Criminal Law Journal 1922.
6. The learned counsel for the petitioners has not cited any contrary judgment and the decision of this Court in Mahant Amar Dass v.
State of Punjab and another, (supra), relied upon by him is not applicable at all. In that case, the accused were tried in a complaint case and after looking into evidence, the complaint was dismissed and the accused were discharged. Thereafter, on the same allegations, the FIR was lodged by the complainant. In that situation, this Court quashed the FIR on the principle of double jeopardy, while holding that the accused cannot be tried twice for the same offence and in the same set of circumstances. The ratio of this judgment is not applicable at all to the facts of the present case.
7. In view of above, I do not find any ground to quash the complaint as well as the summoning order passed therein.
8. Both the petitions are, therefore, dismissed. September 13, 2006 ( SATISH KUMAR MITTAL ) ndj JUDGE
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