IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. M. No.4702-M of 2010 Date of Decision:7.9.2010 Roshan Lal and others .... Petitioners Versus State of Punjab and another .... Respondents CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. A.P.S. Deol, Sr. Advocate with Mr. Daldeep Singh, Advocate for the petitioner. Mr. K.S. Pannu, D.A.G. Punjab. Mr. B.D. Sharma, Advocate for respondent No.2. **** 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? NIRMALJIT KAUR, J. The present petition has been filed under Section 482 Cr.P.C. for quashing of order dated 24.11.2009 (Annexure P-6) passed by learned JMIC, Phul taking cognizance and summoning the petitioners after disagreeing with the cancellation report to face trial under Section 306 IPC in case FIR No.28 dated 4.4.2009, Police Station Dayalpura as well as order dated 5.2.2010 (Annexure P-7) passed by learned Sessions Judge, Bathinda. Facts are that on 8.5.2008 Seema Bansal along with her mother Vera Devi wife of Babu Ram Bansal had gone to Kotkapura to meet her Massi Surinder Kumari wife of Satpal. On 9.5.2008 Seema Bansal left the house of her Massi on the pretext of going to the wash room and came to Faridkot after boarding a bus from Kotkapura. After reaching Faridkot she jumped into Rajasthan Canal but was saved by the people. Vera Devi mother of Seema Bansal got her statement recorded before the Police of P.S. Faridkot on 9.5.2008 with regard to circumstances under which her Crl. M. No.4702-M of 2010 -2- daughter Seema Bansal jumed into the canal. It is contended that the mother of Seema Bansal categorically stated that her daughter used to remain mentally ill even before marriage for which she was getting treatment and had remained admitted in the Hospital of Dr. Rajan Singla, M.D. Medicine, Rajan Hospital and Heart Specialist, Kotkapura. Thus, on account of her mental illness, Seema Bansal tried to commit suicide and the she was not harassed by anybody, not even by her husband Rahul Shankar. An inquiry was conducted by DSP, Rampura Phul. During the enquiry before the DSP both the parties were summoned and their statements were recorded alongwith the statements of the neighbourers as well as doctors who treated Seema prior and after her marriage. From the comparative reading of the statements of 32 witnesses as well as documents produced by both the parties, the Enquiry Officer came to the conclusion that Seema Bansal was suffering from mental illness even prior to her marriage and had been getting treatment from different doctors. It was further revealed from the documents that Seema was mentally ill and at no point of time she had complaint against her in-laws with regard to any kind of harassment. So much so she used to take medicine for mental illness twice a day. Thus, on account of chronic mental ailment, Seema committed suicide by hanging her self with a ceiling fan in the school premises. The said inquiry report was submitted to the Senior Superintendent of Police, Bathinda and after approval, it was sent to SHO, P.S. Dayalpura for submission in the Court for acceptance. The Court of JMIC, Phul sent a mandatory notice to respondent No.2 Babu Ram Bansal (complainant) and after recording his statement disagreeing with the cancellation report, proceeded to summon the petitioners in exercise of power under Section Crl. M. No.4702-M of 2010 -3- 190(1)(b) Cr.P.C. vide order dated 24.11.2009. The petitioners alongwith Rahul Shankar (co-accused) filed revision petition against the order dated 24.11.2009 before the learned Sessions Judge, which was also dismissed vide order dated 5.2.2010. While challenging the impugned orders, learned counsel contended that the petitioner was residing separately and had no role what so ever and further placed reliance on the judgment of Hon'ble the Supreme Court in the case of Gangula Mohan Raddy v. State of Andhra Pradesh 2010 (1) RCR (Criminal) 603 to state that to convict a person under Section 306 IPC mensrea to commit the offence should be established. Learned counsel for the respondent, on the other hand, has relied on the judgment of Hon'ble the Supreme Court in the case of M/s. India Carat Pvt. Ltd., v. State of Karnataka and another AIR 1989 SC 885 to state that Magistrate can take cognizance of offence even if police report is to the effect that no case was made out. Heard. There is no dispute with the proposition of law that Magistrate can take cognizance of offence. Learned counsel for the respondent, however, is not able to dispute the fact that no reason has been given by the learned Judicial Magistrate Ist Class while disagreeing with the cancellation report. The revisional Court too, simply dismissed the revision stating that it was the prerogative of the Magistrate to examine the file to see whether cancellation report is to be accepted or the cognizance of the case is to be taken. Even as per the judgment relied upon by the learned counsel for the respondent rendered in the case of M/s. India Carat Pvt. Ltd.,(Supra), it was held in Crl. M. No.4702-M of 2010 -4- para 16 as under: “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, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused.” Thus, the independent application of the mind is necessary. Whereas no reasoning for disagreeing with the cancellation report is forthcoming. Section 190 of Cr.P.C. reads as under: “190. Cognizance of offences by Magistrates.- (1) Subject to the provision of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.” Crl. M. No.4702-M of 2010 -5- From a perusal of Section 190 of Cr.P.C., it is apparent that Magistrate can take cognizance of an offence upon receiving a complaint, police report and upon information that such offence is stated to have been committed. No complaint, no police report giving information that offence is committed, has been submitted. In fact, inquiry indicated that no offence was committed by the petitioner. Rather, in the present case, cancellation report was submitted. Thus, while disagreeing with the said report, independent application of mind was required before exercising the power under Section 190(1)(b). Summoning of an accused in a criminal case is a serious matter. While summoning, the order must reflect judicious application of mind and law applicable. Accordingly, orders dated 24.11.2009 (Annexure P-6) and 5.2.2010 (Annexure P-7) are set aside and the matter is remanded back to the learned Judicial Magistrate Ist Class, Phul to reconsider and pass fresh order either way giving reasons. However, nothing observed herein above shall be construed as an expression of opinion on the merits of the case. 7.9.2010 ( NIRMALJIT KAUR ) rajeev JUDGE