IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-32909 of 2009 Date of Decision : November 20, 2009 Baljeet Kaur and another ... Petitioners versus State of Haryana and another ... Respondents Present: Mr. R.C. Chaudhari, Advocate for the petitioners L. N. Mittal, J. (Oral) Baljeet Kaur and her husband Manmohan Singh have filed this petition under section 482 of the Code of Criminal Procedure (in short, Cr.P.C.) for quashing complaint Annexure P/1 instituted by respondent no. 2 and consequential FIR No. 346 dated 2.10.2004, under sections 420,120- B IPC, Police Station Pehowa, District Kurukshetra, Annexure P/2 and criminal complaint/protest petition no. 137 dated 16.9.2005, Annexure P/5 and all consequential proceedings. Respondent no. 2 filed criminal complaint Annexure P/1 dated 27.9.2004 which was sent by Illaqua Magistrate to concerned police station under section 156(3) Cr.P.C. for registration of FIR and investigation. Accordingly, FIR, Annexure P/2, was registered on 2.10.2004. On the request of petitioner no. 2, investigation was transferred to State Crime Branch. Challan i.e. Report under section 173 Cr.P.C., Annexure P/4, was prepared on 5.5.2005. In the said challan, the petitioners were kept in column no. 2 being innocent and the challan was presented against Balraj Criminal Misc. No. M-32909 of 2009 -2- Kaur and Mohan Singh who had been declared proclaimed offenders. The challan was presented in the court on 9.5.2005. The court took cognizance and adjourned the case to 13.6.2005, on which date respondent no. 2 appeared in court and sought time for filing protest petition. The complainant filed protest petition dated 16.9.2005, Annexure P/5. Thereafter preliminary evidence was recorded. On 7.4.2006, the protest petition was withdrawn qua proclaimed offenders Balraj Kaur and Mohan Singh and the protest petition proceeded against the petitioners. Learned Illaqua Magistrate vide order dated 31.5.2006 summoned both the petitioners. The petitioners having obtained anticipatory bail appeared in court on 3.11.2006. The petitioners challenged the summoning order by filing revision petition which was, however, dismissed on 2.6.2007. Thereafter only petitioner no. 2 filed petition under section 482 Cr.P.C. in this Court challenging summoning order and the revisional court judgment but the said petition was dismissed by this Court on 20.10.2008. Thereafter, learned Illaqua Magistrate recorded pre-charge evidence which stands concluded. The case is now fixed before Illaqua Magistrate on 21.11.2009 i.e. tomorrow for consideration on charge. Learned counsel for the petitioners contended that after challan was presented finding petitioners to be innocent, the Magistrate could take cognizance under section 190 Cr.P.C. on the basis of the investigation conducted by the police and not on the basis of protest petition filed by the complainant and the preliminary evidence led by the complainant. The contention is completely illegal and unsustainable. Of course, Magistrate Criminal Misc. No. M-32909 of 2009 -3- could take cognizance under section 190 Cr.P.C. on the basis of investigation conducted by the police. However, there is no bar to the taking of cognizance by the Magistrate on the basis of protest petition filed by the complainant and preliminary evidence led by the complainant. No provision of law or precedent has been referred by learned counsel for the petitioners in support of his contention. Learned counsel for the petitioners referred to judgments of the Hon'ble Supreme Court in Mohd. Shafi v. Mohd. Rafiq and Anr. AIR 2007 Supreme Court 1899(1) and Lal Suraj alias Suraj Singh and another vs. State of Jharkhand, (2009) 2 Supreme Court Cases 696. However, both these judgments pertained to power under section 319 Cr.P.C. and are, therefore, not relevant. Learned counsel for the petitioners also relied upon judgment of Hon'ble Supreme Court in Rajinder Prasad vs. Bashir, 2001(4) RCR (Criminal) 312. In that case, the police submitted challan but the complainant moved two applications. By way of one application, the complainant sought addition of offence under section 395 IPC and by another application, the complainant sought addition of four accused who had been wrongly dropped by the investigating agency. The committal Magistrate allowed both applications and committed the case. However, additional accused challenged the order before the High Court. The High Court held that Magistrate committed grave error by taking cognizance of offence under section 395 IPC and also by adding the names of four additional accused persons without resorting to procedure under section 203 Cr.P.C. The Hon'ble Supreme Court, however, set aside the order of the High Court and Criminal Misc. No. M-32909 of 2009 -4- held the order of the committal Magistrate to be legal. In this judgment, it was not laid down that cognizance of the case cannot be taken on the basis of protest petition and preliminary evidence of the complainant. On the other hand, it was laid down that cognizance of the case against additional accused can be taken even without recording preliminary evidence. However, on the basis of this authority, it cannot be held that the procedure adopted by the Magistrate in the instant case is illegal in any manner. In addition to the aforesaid, the petitioners' conduct is very malafide. They have already exhausted their remedy by filing revision petition against the summoning order. The revision petition was dismissed. Petitioner no. 2 filed petition under section 482 Cr.P.C. in this Court. It was also dismissed. Accordingly, now at this stage, there is no occasion for the petitioners to have approached this Court by way of instant petition under section 482 Cr.P.C. because nothing new has happened after the first round of litigation to entitle the petitioners to any relief. On the other hand, the plea whatever is now sought to be raised in the instant petition could have been raised by the petitioners in the earlier round of litigation. The instant petition has been filed simply to stall the framing of charge on the basis of the pre-charge evidence already concluded because the case is fixed before the trial Magistrate for 21.11.2009 i.e. tomorrow for consideration on charge. The instant petition is completely frivolous and devoid of merit. In view of the aforesaid, the instant petition is dismissed with exemplary costs of Rs 10,000/- to be deposited with the Registry of this Criminal Misc. No. M-32909 of 2009 -5- Court within one month from today. If the cost amount is not deposited within one month, the case shall be listed for this purpose. ( L. N. Mittal ) November 20, 2009 Judge 'dalbir'