Crl Misc. No.M-1[SECTION]3 of 2012(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl. Misc. No.M-1[SECTION]3 of 2012 (O&M) Date of decision: 12.09.2013 [ENTITY] and another Petitioners Versus [ENTITY] and another Respondents CORAM: HON'BLE MS. JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate, for the petitioners. Mr. [ENTITY], AAG, Punjab. [ENTITY] , J.
This petition under [SECTION] [ACT], is for quashing of FIR No.107 dated 23.10.2010, under Sections [SECTION] [ACT], registered at Police Station Sadar Phagwara, District Kapurthala, as well as challan (Annexure P-5) under [SECTION] [ACT], presented against the petitioners.
A complaint was made by [ENTITY]-petitioner No.2 against [ENTITY]respondent No.2 alleging that [ENTITY], husband of petitioner No.2 and [ENTITY] were on visiting terms with each other. [ENTITY]respondent No.2 had taken a loan from [ENTITY], which was outstanding against him. Subsequently, [ENTITY], husband of petitioner No.2, wanted to purchase a car by taking loan from the bank, however, he was not having any document of ownership. Therefore, respondent No.2 made a proposal and offered to take loan from the bank for [ENTITY] in his own name and undertook to pay back the loan amount to the bank in installments and after getting no due certificate from the bank, he would transfer ownership of the car in the name of [ENTITY]. It was agreed by [ENTITY]respondent No.2 that the said car would remain in possession of petitioner No.1-[ENTITY] and he would use the same. Accordingly, [ENTITY]-petitioner No.1 purchased a car make Maruti Alto (model 2009), bearing chassis no.1490398 and Engine No.373865 in the name of respondent No.2 after taking financial assistance of Rs.2,00,000/- from HDFC Bank Ltd., Jalandhar. Subsequently, [ENTITY]respondent No.2 did not pay back the installments and started demanding further amount from [ENTITY]-petitioner No.1. Hence, [ENTITY] lodged a complaint with the police against [ENTITY] regarding theft of the said car. However, on 09.04.2010, with the intervention off the respectable, a compromise was effected between the parties to the effect that [ENTITY]-petitioner No.1 would pay the entire balance amount to the bank till 16.04.2010 and thereafter, [ENTITY]respondent No.2 would transfer ownership of the car in the name of [ENTITY]. Thereafter, on 16.04.2010 [ENTITY] along with [ENTITY] went to HDFC Bank and deposited the entire outstanding loan amount of Rs.2,13,000/- against receipt. On the same day, an affidavit was also given by [ENTITY]respondent No.2 that he has no objection if ownership of the car is transferred in the name of [ENTITY]. The FIR was registered with the allegations that after the payment was made by [ENTITY]-petitioner No.1 to the bank, the car has not been returned back to him.
After registration of the FIR, respondent No.2 made an application for conducting enquiry into the FIR. The co-accused of respondent No.2 also made an application to the DGP, Punjab, Chandigarh. Thereafter, the enquiry was marked to the Superintendent of Police, Sub Division, Phagwara, who after conducting the enquiry, found that the main accused, against whom initially the FIR was lodged i.e. [ENTITY]respondent No.2 and [ENTITY], were innocent. However, the petitioners were held guilty. [ENTITY] was found to be owner of the car in dispute and complainant [ENTITY]-petitioner No.2 and her husband [ENTITY] were found guilty. The Senior Superintendent of Police, Kapurthala, agreed with the said report and ordered for further investigation. Thereafter, proclamation proceedings were initiated against the petitioners. Ultimately, challan (Annexure P-5) was presented against the petitioners.
Upon notice, reply on behalf of respondent No.1-State in the shape of affidavit of Deputy Superintendent of Police, Sub Division, Phagwara, has been filed, wherein it has been stated that after the enquiry, conducted by the Superintendent of Police, Phagwara, it was found that petitioners were the real culprits and Alto Car bearing registration No.PB-09-L-3634 was purchased by [ENTITY] respondent No.2. Subsequently, petitioner No.1 sold the said car through [ENTITY], dealer, after forging the signatures of [ENTITY] on the papers with active connivance of his wife [ENTITY]-petitioner No.2. The proceedings for declaring them proclaimed offenders were initiated and the petitioners were, later on, granted anticipatory bail by the Additional Sessions Judge, Kapurthala. After investigation, the challan was presented before the Illaqa Magistrate on 03.06.2011.
Learned counsel for the petitioners has argued that as per the procedure, set up in the [ACT], after registration of the FIR, when different views were taken during investigation, initially a notice was required to be given to the complainant, so as to enable him/her to make objections to the said report and thereafter, appropriate orders for cognizance of the offence of trial, could be passed.
In this regard, reference has been made to a judgment delivered by the Hon'ble Supreme Court in case [ENTITY] Vs. Dulal Ghosh & another, 2009 (3) Criminal Court Cases 687, wherein it has been held as under:-
"13. In [PRECEDENT], this Court while considering the provisions of [SECTION], [SECTION], [SECTION] and [SECTION] of the Code held that there is no power, expressly or impliedly conferred, under the code, on a Magistrate to call upon the police to submit a charge sheet, when they have sent a report under [SECTION] of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistrate and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report, if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in [SECTION].
14. When a report forwarded by the police to the Magistrate under [SECTION] is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding or (3) may direct further investigation under [SECTION] and require the police to make a further report. The report may on the other hand, state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate, he has again the option of adopting one of the three courses open i.e. (i) he may accept the report and drop the proceedings; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under [SECTION]. The position is, therefore, now well settled that upon receipt of a police report under [SECTION], A Magistrate is entitled to take cognizance of an offence under [SECTION] of the code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of an order the issue of process to the accused. [SECTION] does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under [SECTION] and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in [SECTION] and [SECTION] of the Code for taking cognizance of a case under [SECTION] though it is open to him to act under [SECTION] or [SECTION] also. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or take the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in [PRECEDENT]'s case (supra) that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard."
The Hon'ble Supreme Court in case [ENTITY] Vs. Harminder Singh & others, Law Herald (SC) 2870, has held as under:-
"11. After referring to the law laid down in [PRECEDENT] (supra) this Court has further held in Mrs. [PRECEDENT], that where the police in its report of investigation or further investigation recommends discharge of the accused, but the complainant seeks to satisfy the Court that a case for taking cognizance was made out, the Court must consider the objections of the complainant and if it overrules such objections, it is just and desirable that the reasons for overruling the objections of the complainant be recorded by the Court and this was necessary because the Court while exercising power under [SECTION] [ACT], whether to take cognizance or not to take cognizance exercises judicial discretion."
Applying the ratio of the judgments delivered by the Hon'ble Supreme Court in [ENTITY] and [ENTITY]'s cases (supra) with the facts of the present case, this Court is of the opinion that when challan (Annexure P-5) was presented before the trial Court under [SECTION] [ACT], it was the duty of the Magistrate to give a notice to the complainant, so as to give him/her opportunity to file objections to the challan (Annexure P-5), which has not been done in this case. Therefore, cognizance could not have been taken by the trial Court.
Resultantly, this petition is partly allowed and a direction is given to the trial Court to give necessary notice to the petitioners with regard to challan (Annexure P-5) and thereafter, proceed in accordance with law.
([ENTITY]) 12.09.2013 JUDGE ajp