Criminal Misc.-M No.32946 of 2011 (O&M) :1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: November 03 2011 Raunak Singh .....Petitioner VERSUS Surender Singh & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.D.S.Pheruman, Advocate, for the petitioner. **** RANJIT SINGH, J. The petitioner has challenged the order passed by Sub Divisional Judicial Magistrate, Mohali accepting the cancellation report submitted by the police in FIR No.43 dated 11.4.2000, which was registered under Sections 302, 148, 149 IPC. Further prayer is to direct the Magistrate to take cognizance in the said FIR against the accused persons impleaded as respondents. At the outset, counsel for the petitioner was asked to assist the court if it would be within the purview of this court to direct the Magistrate to take cognizance of a criminal case, where the court has accepted the cancellation report submitted by investigating agency. Instead of making submission in this regard, the counsel Criminal Misc.-M No.32946 of 2011 (O&M) :2 : confined himself to draw the attention of the court to the facts, as pleaded in the petition, and the background in which ultimately this cancellation report has been submitted and accepted by the Court. This case has a long drawn history which has been duly reflected in the petition. As can be seen from the record, an unidentified dead body of a Gorkha like young man was found on the edge of village pond in Sekhan Majra. On learning about it, former Sarpanch Sarwan Singh informed Suhana Police and the local police had reached at the spot. Dead body was taken out of the pond and kept on the road for identification. A poster was issued and announcement was made in the village to enable the people to identify the dead body. No body, however, could identify the same. Head Constable Shamsher Singh had conducted the inquest proceedings and declared the dead body unclaimed and got the cremation done. The photograph of the dead body was got published in the Newspaper. A complaint was then made by Raunak Singh and Gurmail Singh residents of the village Sekhan Majra, which ultimately was placed before the Director General of Police, Punjab, Chandigarh on 16.2.2000. It was mentioned in the complaint that unidentified deceased Gorkha was domestic servant of former Sarpanch Sarwan Singh, who alongwith his son was allegedly accused of murdering the deceased. This complaint was marked to SSP Ropar, who further detailed Avtar Singh Gakhar DSP to enquire into the complaint. On the direction of SSP, Ropar a case was registered for investigation. Sarwan Singh and his three sons were arrested and sent for the judicial custody. It is then that Balwinder Kaur daughter-in-law of Sarwan Singh gave a representation to Chief Criminal Misc.-M No.32946 of 2011 (O&M) :3 : Minister alleging false implication of her family in this case. The Chief Minister sent this complaint to DGP, who marked it to ADGP, when Paramjit Singh Gill AIG/Crime was asked to take necessary action and submit report. AIG Gill conducted the enquiry and recorded the statements of the witnesses, which revealed that there were hundred acres of shamlat land in the village which was leased by the Panchayat in the year 1999. Sarmukh Singh, Karnail Singh and Bhajan Singh sons of Hari Singh alongwith some other persons had tried to take illegal possession of the Panchayat land. The complaint was made to ADC Ropar, when SDM conducted an enquiry. Wrong mutation of the shamlat land, which was got recorded by Surmukh Singh, was accordingly got cancelled. When the Panchayat tried to harvest the crop, large number of group of Surmukh Singh had reached the place duly armed. The fight had taken place between the parties, as a result of which, one member panchayat Avtar Singh had died. A case under Section 302 IPC was registered on 22.4.1999 by Gurdip Singh son of Sarwan Singh Sarpanch. Sarwan Singh and his sons became witnesses in this case and ultimately the accused persons were sentenced. Later they were released on bail. AIG P.S. Gill accordingly found that this complaint was registered because of these rivalries against Sarwan Singh by obtaining thumb impressions of Gurmail Singh by deceit. It is noticed that Harpal Singh and Mewa Singh are two particulars witnesses, who have stated that deceased Gorkha, who was a domestic servant of Sarwan Singh, which, according to Harpal Singh had come forward to depose on seeing photograph of the Criminal Misc.-M No.32946 of 2011 (O&M) :4 : deceased Gorkha in Newspaper and Police Station. Harpal Singh had also stated that he could not earlier recognise the said Gorkha, who had served tea when he had gone to the house of Sarwan Singh from the photograph. On the basis of these two persons, the report was given that the Nepali servant was employed. The enquiry by DIG, which was also conducted, however, had revealed that one Surinder Singh had spent about three and half years period at the house of Sarwan Singh at Sector 21, but no Nepali servant was employed, which fact was also verified by retired Superintendent of Jail Shri J.S.Gill before the enquiry officer. On the basis of such enquiries and other enquiries that were held, the cancellation report was ultimately filed, which has been accepted. Apparently, this appears to be a case registered on account of extreme party faction in the village. The complainant in this case has a strong motive to make a complaint against the accused persons. The main submission made by the learned counsel for the petitioner is that earlier the police had prepared a challan but subsequently upon reinvestigation/further investigation, the cancellation report was filed. This also is the background as both the parties have approached this Court and also various judicial forums in all the 10-11 years when the case has remained under investigation. Earlier a cancellation report was filed which was not accepted by the then Addl.Sessions Judge, Rup Nagar and the police was directed to file challan. Against this order, the accused persons had filed a Criminal Misc.No.14800-M of 2003 under Section 482 Cr.P.C. before this court. The matter was remanded to the Court of Addl.Sessions Judge, Ropar when S.K.Goel did not agree with the Criminal Misc.-M No.32946 of 2011 (O&M) :5 : cancellation report and sent the case back for reinvestigation. The police had again submitted a cancellation report. The trial Court while dealing with the issue has noticed that Shri S.K.Goel, Addl.Sessions Judge, Rup Nagar had noticed while rejecting the cancellation report that the enquiry was conducted by DGI Police Lines, Ludhiana Range Ludhiana and had submitted his report on 23.3.2005. He was found to have conducted thorough investigation as per the points formulated by Addl.Sessions Judge, Rup Nagar. The trial court thereafter had gone into all these aspects to notice that DIG Ludhiana has dealt with all the points involved in the investigation and has found that there is no evidence whether the deceased had worked with Sarwan Singh as his servant or that even the dead body which was recovered was got identified. No evidence has come if any liquor was given by the accused persons to the deceased. Besides, there is an evidence collected by the investigating agency that there is serious enmity between the complainant party and the accused on account of the facts which have already been noticed in detail above. The court has also noticed that this Court has already set aside the sale deed of the Panchayat land in favour of the complainant and has transferred the property in the name of village Panchayat. Brother of the complainant has been convicted for an offence under Section 302 IPC. Thus, the Investigating Officer has found that there is a personal enmity because of which this FIR has been lodged. The submission made by the learned counsel for the petitioner that the investigating agency has failed to look into the aspect and the points which were noticed and observed by the Criminal Misc.-M No.32946 of 2011 (O&M) :6 : Addl.Sessions Judge earlier is also factually inaccurate. The investigation report, which has been placed on record, would show that the Addl.Sessions Judge had directed reinvestigation on the following points, which are noticed in the report as such:- “(a) Whether the deceased was working with Sarwan Singh as Labourer in their fields; (b) If so, where he died and what were the circumstances why he was murdered, who were present at the relevant time etc. (c ) Since when the said Nepali was working with them and whether he was addicted to alcohol or in whose company he drank on the day of occurrence etc. (d) Whether any physical beatings were given before the death if so, its effect, who gave such beatings etc. (e) Whether any finger prints or moulds were taken on the spot and if so, its inevitable result. (f) all relevant questions like, who administered the alcohol to him etc.” A perusal of the investigation report would show that investigation was conducted on these points by the investigating officer alongwith Rakesh Aggarwal IPS, SP Mohali and Davinder Singh SI/SHO Sohana by conducting secret and open enquiry and the point-wise discussion has been made in the enquiry report on the points as noticed by the Addl.Sessions Judge, Ropar. The finding by the investigating agency on each point is found recorded, which has not been contested before me in any manner. Criminal Misc.-M No.32946 of 2011 (O&M) :7 : The order passed by the Magistrate declining to take cognizance is a well written order. The order not only refers to the investigation conducted and the statements recorded by the various senior police officers during investigation but has looked into all those points, which were observed and noticed by Additional Sessions Judge while remitting the case for re-examination in exercise of revisional jurisdiction. The final report filed by the police has been accepted and the investigating agency has also found that sufficient material was not available to make out prima-facie case for commission of offence by the respondent-accused. The principles required to be kept in mind at the stage of taking cognizance are well settled. It is to reach a prima-facie view. At this stage, the Magistrate has only to decide whether sufficient grounds exist or not for further proceedings in the matter. Notwithstanding the opinion expressed by the investigating agency, a Magistrate is empowered to take cognizance if the material on record makes out a case. It is not disputed before me that investigation is in the exclusive domain of the police. Taking of cognizance of an offence is an area exclusively within the domain of a Magistrate. At the stage of taking cognizance, the Magistrate has only to be satisfied whether there is a sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of enquiry [See Jagdish Ram Vs. State of Rajasthan and Anr., JT 2004 (3) SC 202: AIR 2004 Supreme Court 1734 and Smt.Nagawwa V/s Veeranna Shivalingappa Konjalgi, AIR 1976 SC 1947]. Criminal Misc.-M No.32946 of 2011 (O&M) :8 : Once the Magistrate decides either to take cognizance of the offence or to accept the report submitted by the investigating agency for cancellation etc., the scope of interference in such like orders either in revision or under Section 482 Cr.P.C. would always be limited. This aspect has to be kept in view. As per Section 190 Cr.P.C, it is for the Magistrate to either take cognizance or not to do so and in this regard, he is not bound in any manner by the report submitted by the police/investigating agency. What he has to do to satisfy himself while taking cognizance is already noticed above. Once the Magistrate exercised his judicial discretion, interference by the High Court in the discretion so exercised though permissible, it being judicial proceedings, but this would have to a revisional jurisdiction. It has been so viewed by different courts. When a Magistrate institute proceedings against any person without there being sufficient material for doing so, the High Court can interfere in revision and quash the proceedings. When no prima-facie case is made out against the accused person, then action of taking cognizance by Magistrate can be held to be illegal. Even an order of a Magistrate, refusing to take cognizance of an offence can be dealt with by the High Court in its revisional jurisdiction. Reference in this regard can be made to Rama Shanker Versus The State of U.P., AIR 1956 Allahabad 525. It is also viewed in this case that when it is open to the applicant to move the High Court to exercise its revisional jurisdiction, then he can not move it to exercise its inherent jurisdiction. The scope of interference under Section 397 Cr.P.C. ofcourse is very limited and has to be applied rarely and with Criminal Misc.-M No.32946 of 2011 (O&M) :9 : circumspection only when the uncontroverted allegations do not establish the offence. This Court can not launch a detailed and meticulous examination of the case on merits and set-aside the order passed by the Magistrate. The power of the Magistrate is restricted to finding out whether there is a prima-facie case or not for proceeding against accused and he can not enter into a detailed discussion on the merits or demerits of the case. The scope of revisional jurisdiction is limited. This Court cannot examine the merits or demerits of the case and set aside the order of Magistrate directing issue of process against certain persons. This was so held by Hon'ble Supreme Court in Hareram Satpathy Versus Tikaram Aggarwal & others, AIR 1978 SC 1568. Besides this, Hon'ble Supreme Court also considered the aspect of High Court power and jurisdiction to interfere with orders passed by Magistrate in exercise of its power under Section 482 Cr.P.C. The view is that once the Magistrate has exercised his discretion, it is not for the High Court or even the Supreme Court to substitute its own discretion for that of Magistrate. Reference here can also be made to the observations made by the Hon'ble Supreme Court to the case of Smt.Nagawwa'(supra). The jurisdiction of the Revisional Court would always remain confined to find out whether there is a prima-facie case or not. It may be those rare cases like want of jurisdiction where the Magistrate has taken cognizance, which may indicate abuse of process of Court that the application under Section 482 Cr.P.C. may be maintainable. Once the Magistrate exercises his discretion judiciously, there can hardly be any scope of interference by the High Court. Examined in the light of law noticed above, no case is Criminal Misc.-M No.32946 of 2011 (O&M) :10 : made out for interference in the order passed by the Magistrate, which is well reasoned, though he was not under any obligation to enter into detailed discussion of the merits or demerits of the case. There is no averment or allegation made in the petition that it is a case of any misuse of power or that discretion has been wrongly or illegally exercised. The counsel only wants this Court to go into the merits of the case to take a different view by directing the Magistrate to take cognizance. These directions, as prayed for, also appear beyond the scope of this Court while exercising revisional jurisdiction or inherent jurisdiction. Discretion to take cognizance or to accept the cancellation report is to be left to the Magistrate. Incidentally the petitioner has not invoked the revisional jurisdiction. The petition is dismissed. November 03, 2011 ( RANJIT SINGH ) ramesh JUDGE