IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Delay Condonation Application No.878 of 2010 Restoration Application No.658 of 2010 In CRIMINAL MISC. APPLICATION NO.270 OF 2004 (U/s 482 of Cr.P.C.) Santosh Puri Geeta Bharti and three others …………Applicants Versus State of Uttarakhand and two others …………Respondents Dated: October 7, 2010 HON. DHARAM VEER, J. Mr. R.P. Nautiyal, Advocate for the applicants. Mr. Amit Bhatt, Addl. GA for the State/respondent nos.1 and 2. Mr. Vivek Shukla, Advocate for respondent no.3. This is Delay Condonation Application No.878 of 2010 for condonation of delay in moving the restoration application No. 658 of 2010 for restoration of the petition u/s 482 Cr.P.C., which was dismissed for non-prosecution on 21.4.2009. For the reasons stated, the delay condonation application is allowed. Delay in filing the restoration application is condoned. Also heard on restoration application. The ground for absence on the date fixed by the Court is sufficiently explained in the affidavit accompanying the restoration application. The restoration application is allowed. The petition u/s 482 Cr.P.C. stands restored to its original number. Heard. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioners/applicants have sought quashing of orders dated 1.4.2004 and 2.6.2004 as well as the proceedings of criminal case no.348 of 2004, relating to offences punishable under 2 Sections 406, 420 and 120-B of The Indian Penal Code, 1860 (for short, IPC). Facts, in brief, are that respondent no.3 Smt. Sundara Devi Rawat lodged a complaint before Ist ACJM, Haridwar, with the averments that she was running a shop under the name and style Proprietor Rawat Cement Store, Gandhi Road, Kankhal. Her husband and son also used to help her in the said business. It is alleged that in May 1993 while her husband was in the shop, the applicant asked for the supply of cement and assured him to make the payment. Relying upon the applicant, her husband supplied the cement to her. It is further alleged that from the period 1993 to 1999 her husband and son supplied the above material of ` 369765/- to her on different dates, out of which ` 83573/- was due on her. It is further alleged that time and again the applicant no.1 Santosh Puri Geeta Bharti was requested to make payment but to no avail. Notice was also served upon the applicant through complainant’s counsel but even then also the applicant did not pay the money to complainant. It is further alleged that in June 2001 the applicant no.1 completely refused to make payment. With these averments, the complaint was filed by respondent no.3 against the applicant no.1. After hearing learned counsel for the complainant and perusing the material available, learned Ist A.C.J.M., Haridwar, vide order dated 15.10.2001, dismissed the complaint u/s 203 Cr.P.C. Thereafter, on 18.3.2002, the complainant, on the basis of same facts and same set of allegations, moved an application u/s 156 (3) Cr.P.C. and got lodged an FIR against the applicants including applicant no.1 without disclosing the fact that earlier criminal complaint had already been dismissed by the trial court. After lodging of the FIR, the matter was investigated and on completion of investigation, the Investigating Officer submitted final report on 8.6.2002 stating that earlier the complaint of the complainant was dismissed by ACJM, Haridwar u/s 203 Cr.P.C. After the submission of final report, notice was issued to the respondent, who filed a protest petition against the final report and submitted her affidavit as well as the affidavits of other witnesses. Thereafter learned Magistrate heard on the protest petition and considered the affidavits among other materials and rejected the 3 final report vide impugned order dated 1.4.2004 and summoned the applicants under Sections 420/406/120-B IPC. Thereafter an application was moved by the applicants before the learned Magistrate to revoke/cancel the order taking cognizance but the same was also rejected by the Magistrate vide impugned order dated 2.6.2004. Feeling aggrieved, the applicants preferred this petition u/s 482 Cr.P.C. before this Court. Learned counsel for the petitioners submitted that earlier a complaint was filed by the respondent no.3 against applicant no.1 Smt. Santosh Puri Geeta Bharti only and that complaint was dismissed by Ist ACJM, Haridwar on 15.10.2001. It is further submitted that the same order dated 15.10.2001 was not challenged by the respondent no.3 in any court. It is contented that since that order was not challenged by the respondent no.3 earlier, therefore, she has no right to move an application u/s 156 (3) Cr.P.C. on the same facts and same set of allegations. I find force in the argument of learned counsel for the applicants. First complaint filed by the complainant was dismissed by learned Magistrate u/s 203 Cr.P.C. The complainant did not challenge that order though remedy to file a revision against that order was available to the respondent no.3 but she did not avail that remedy and instead of availing appropriate remedy she moved an application u/s 156(3) Cr.P.C. and got lodged an FIR against all the applicants on the same facts and allegations by concealing the fact that earlier her complaint was dismissed by the trial court. Thus, this second FIR, lodged on the basis of same facts and same set of allegations, is not maintainable as per law. Learned counsel for the applicants further argued that the trial court has summoned the applicants on the basis of affidavits of complainant herself and that of witnesses namely Rajendra Prasad and Sunil Kumar which is not permissible as per law inasmuch as there is no provision under the law which provides for taking cognizance of offence on the basis of the affidavits submitted along with the protest petition in response to the final report. Reliance is placed on the judgment of Allahabad High Court delivered in case of Mathura Prasad & Ors. v. State of U.P. & Anr. reported in 2007 (1) ALJ (DB), wherein the Hon’ble 4 Court has considered the questions (i) whether it will make any difference if the protest petition is accompanied by some affidavit or similar other documents and (ii) when cognizance is taken on the basis of protest petition and accompanying documents, will the same be invalid on account of omission to examine the complainant and his witnesses under Section 200 and 202 CrPC and has answered these questions in para 16 of the judgment, which is quoted as under: “So far as the question Nos.2 & 3 are concerned, we are of the view that if the Magistrate after receiving protest petition and considering the police report if proceed to take cognizance under section 190(1)(b) and issue process, he cannot look into any material placed before him along with protest petition except the material collected by the police and placed before him along with the report. However, if he treats the protest petition as complaint and proceeds to record statement of the complainant and the witnesses and thereafter issue process, the evidence placed before him along with protest petition may be relevant and be considered by him. The reason for taking this view is where the Magistrate decide to take cognizance of a case under Section 190(1)(b) ignoring the conclusion arrived at by the investigating agency and by applying his own mind on the facts available on investigation record, he is not bound to follow the procedure laid down in Sections 200 and 202 of the Code and consequently proviso to Section 202(2) also would have no application. In such case a Magistrate can form his opinion only on the statement of the witnesses recorded by the police in the case diary and other material collected during his investigation and it is not permissible for him at this stage to look into any material other than investigation record unless it decides to take cognizance under Section 190(1)(a) of the Code.” Undisputedly, the complainant/respondent no.3 filed her affidavit as well as the affidavits of her witnesses along with the protest petition and learned Magistrate considered the same while taking the cognizance of the offence against the applicants and summoned them to face the trial, which is against the spirit 5 of law as has been discussed supra that if the Magistrate after receiving protest petition and considering the police report, proceed to take cognizance under section 190(1)(b) and issue process, he cannot look into any material placed before him along with protest petition except the material collected by the police and placed before him along with the report. In the instant case, the Magistrate ought to have directed the complainant to produce the witnesses under Section 200 and 202 Cr.P.C., if the Magistrate was of the view that the correct statements have not been recorded then the evidence placed before him along with the protest petition may be relevant and can be considered by him. For the reasons recorded above and in view of the legal proposition discussed supra, the impugned orders dated 1.4.2004 and 2.6.2004 passed by Judicial Magistrate, Haridwar, are not correct and justified and the same are liable to be set aside. Resultantly, the instant C482 petition is allowed. Impugned orders dated 1.4.2004 and 2.6.2004 passed by Judicial Magistrate, Haridwar, are hereby quashed. Matter is remanded back to the trial court with direction to decide the matter afresh in accordance with law and in the light of the observations made above. Interim order dated 24.6.2004 stands vacated. (Dharam Veer, J.) 7.10.2010 RG