1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Jai Singh Punia Vs. State of Rajasthan (1) S.B.CRIMINAL MISC. PETITION NO.11/2010 Ram Kumar Swami Vs. State of Rajasthan (2) S.B.CRIMINAL MISC. PETITION NO.479/2007 Amar Singh Vs. State of Rajasthan (3) S.B.CRIMINAL MISC. PETITION NO.516/2007 Sudheer Gupta Vs. State of Rajasthan (4) S.B.CRIMINAL MISC. PETITION NO.715/2007 REPORTABLE Sudheer Gupta Vs. State of Rajasthan (5) S.B.CRIMINAL MISC. PETITION NO.716/2007 Satish Kumar Vs. State of Rajasthan (6) S.B.CRIMINAL MISC. PETITION NO.732/2007 Ganga Ram Vs. State of Rajasthan (7) S.B.CRIMINAL MISC. PETITION NO.733/2007 Jagdish Prasad Vs. State of Rajasthan (8) S.B.CRIMINAL MISC. PETITION NO.734/2007 Mange Ram Sharma Vs. State of Rajasthan (9) S.B.CRIMINAL MISC. PETITION NO.735/2007 Beg Ram Vs. State of Rajasthan (10) S.B.CRIMINAL MISC. PETITION NO.736/2007 Suresh Chand Gaur Vs. State of Rajasthan (11) S.B.CRIMINAL MISC. PETITION NO.754/2007 Tormal Vs. State of Rajasthan (12) S.B.CRIMINAL MISC. PETITION NO.782/2007 Bhanwarlal Saharan Vs. State of Rajasthan (13) S.B.CRIMINAL MISC. PETITION NO.783/2007 Mal Chand Vs. State of Rajasthan (14) S.B.CRIMINAL MISC. PETITION NO.784/2007 2 Biharilal Yogi Vs. State of Rajasthan (15) S.B.CRIMINAL MISC. PETITION NO.1186/2007 Gopi Ram Punia Vs. State of Rajasthan (16) S.B.CRIMINAL MISC. PETITION NO.11/2010 Goru Ram Vs. State of Rajasthan (17) S.B.CRIMINAL MISC. PETITION NO.15/2010 UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE. Date of Judgment: Jan.18, 2010 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Mahesh Bora Mr.Pradeep Shah Mr.S.G.Ojha Mrs.Sushma Dhara Ms Pintu Pareek Mr.Ramesh Purohit Mr.Vijay Purohit Mr.H.S.Sandhu Mr.B.S.Sandhu Mr.D.S.Gharsana Mr.T.C.Sharma Mr.Prithviraj Singh Mr.Rajesh Kumar Bhardwaj Mr.V.R.Choudhary ) for the respective petitioners. Mr.Anand Purohit, Addl.Advocate General. Mr.Mahipal Bishnoi, Public Prosecutor. Dr.P.S.Bhati Mr.Rohitash Singh) for the complainant. BY THE COURT : 1. Since all these seventeen Misc. Petitions arise out 3 of the order of the learned Judicial Magistrate, First Class, Sardar Shahar, Distt.Churu dt.27.2.2007, they are being disposed-of by this common order. By the impugned order, the learned Magistrate took cognizance against all the petitioners for the offences u/ss.409, 420, 467, 468, 471, 201 and 120B IPC in the matter of FIR No.169/06 of Police Station, Sardar Shahar, District Churu. The matter was investigated by the police and chargesheet was filed against Ravi Shanker Mathur, A.En., PHED (Water Works Department) and against rest of the accused, who are now petitioners before this Court, the investigation was kept pending under Section 173(8) CrPC. Learned Magistrate on the basis of this chargesheet filed on 10.2.2007 took cognizance against the above 17 petitioners against whom the chargesheet was kept pending u/s.173(8) CrPC alongwith accused Ravi Shanker. Petitioners challenged the order of taking cognizance against them by way of revision petitions, but by the order of this Court dt.15.5.07 passed in S.B.Cr.Revision Petition No.181/07, the revision petitions were ordered to be withdrawn with liberty to file Misc. Petitions under Section 482 CrPC, therefore, these Misc. Petitions have been filed. 4 2. I have heard learned counsel for the petitioners as well as the learned Additional Advocate General and learned Public Prosecutor alongwith learned counsel for the complainant. 3. A preliminary objection has been raised by the learned counsel for the complainant that in view of the judgment of this Court passed in Natwarlal vs. State of Rajasthan reported in 2008(3) WLC(Raj) p.497, the order of taking cognizance by the magistrate is revisable only by the Sessions Court, therefore, this Court should not interfere by entertaining these Misc. Petitions filed u/s.482 CrPC. It is further argued that once the cognizance has been taken by the learned Magistrate, the provisions of Section 173(8) CrPC keeping investigation pending will not come in way and that order can only be challenged by way of filing revision before the Sessions Court. In support of his contention, he has also placed reliance on the cases of State of Maharashtra vs. Sharadchandra Vinayak Dongre reported in (1995) 1 SCC 42; Swil Ltd. vs. State of Delhi reported in (2001) 6 SCC 670; and Aunti Ram Meena vs. State of Rajasthan reported in 2003(1) WLC (Raj) 635. 5 4. It is argued by the learned counsel for the petitioners that now, the police has submitted the Final Report in the matter on 22.2.2009 by arriving at a conclusion that no offence is made out, but prior to this, they had already filed most of these Misc. Petitions, as liberty was granted by this Court on 15.5.07, therefore, the order taking cognizance against the petitioners should be quashed u/s.482 of the Code of Criminal Procedure. It has been further argued by the learned counsel for the petitioners that challan against accused Ravi Shanker was filed because ninety days were going to be completed and the learned Magistrate did not apply his mind on the contents of the chargesheet. According to them, at this stage, when revisions have been withdrawn, it will be very difficult for the learned Sessions Judge to re-open the order of cognizance, taken by the learned Magistrate in second revision. It has also been argued that once the Final Report has been given by the police on the basis of factual investigation by discarding the audit report based on wrong notions, the order of taking cognizance was void ab initio and without jurisdiction, which can very well be quashed u/s.482 CrPC by this Court. 6 5. In Natwar Lal's case (supra), it has been explicitly laid down that the order of the learned Magistrate is revisable only by the Sessions Court, except in rare & special circumstances as emerged in the present petitions, where the remedy invoked u/s.482 CrPC has taken away the right of the party to file second revision. The judgment in Natwarlal's case (supra) was delivered by this Court on 14.8.08 and these petitions were filed on 15.5.07, except few, which are filed later on for the same relief. Prior to this judgment of Natwarlal (supra), this Court granted liberty to the petitioners to file Misc. Petitions u/s.482 CrPC by withdrawing the revision petitions. Though, there are different dates of filing the Misc. Petitions, some have been filed earlier to this order dt.15.5.07 and some, after this order. When such is the situation, then rejecting these Misc. Petitions on the ground that the alternative remedy is available by filing revision petition under Sec.397 CrPC, will surely be a futile exercise before the first revisional Court i.e. Sessions Court and a question of limitation will also emerge vis a vis the propriety of the learned Sessions Judge to sit over the orders of this Court passed in revision petitions resulting in deprivation of petitioners' valuable right to 7 defend their liberty, which has been encroached upon by way of taking cognizance by the learned magistrate, especially when the investigation was kept pending u/s.173(8) CrPC, wherein now the police has given the Final Report on the ground that earlier finding of their involvement during investigation was based on audit report, was ill-founded. 6. This Court cannot minutely go into the finding of the investigating officer with regard to the grounds submitted in the Final Report in these Misc. Petitions and this right is first available to the learned magistrate. Therefore, looking to the special circumstances as emerged in this case, as discussed above in the light of Natwarlal's case (supra), it will be just and fair for this Court to allow the learned magistrate to look into the genuineness of the grounds in submitting the Final Report afresh for securing the ends of justice, else it may result in abuse of the process of law. 7. So far as the decisions cited by the learned counsel for the complainant are concerned, they are not helpful to the facts of the present case. In Swil Ltd.'s 8 case (supra), the magistrate took cognizance u/s.190 (1)(b) CrPC on the basis of the documents submitted by the police u/s.173(2) CrPC but in the present case, as discussed above, the police kept the matter pending investigation against the present petitioners u/s.173(8) CrPC. By & large, same is the view taken by the Hon'ble Supreme Court in Sharadchandra Vinayak Dongre's case (supra) with the further observation that it will not affect the jurisdiction of the magistrate to take cognizance, if he was otherwise satisfied from the material placed before him alongwith the chargesheet that cognizance of the offence was required to be taken, even though the prosecution moved an application for seeking permission to file supplementary chargesheet. While relying upon the decision in Sharadchandra Vinayak Dongre's case (supra), a Coordinate Bench of this Court in Aunti Ram Meena's case (supra) held that investigation pending u/s.173(8) CrPC is no bar for taking cognizance against an accused. I have gone through this judgment, which is based on the decision of the Hon'ble Supreme Court in Sharadchandra Vinayak Dongre's case (supra) but in Sharadchandra Vinayak Dongre's case (supra), the effect of Section 173(8) CrPC was not dealt with, as the 9 learned counsel for the respondent submitted that the State does not intend to file any further material by way of supplementary chargesheet before the trial Court. In my view, all these judgments cited by the learned counsel for the complainant, are not helpful to the facts of the present case. 8. Though per se, the jurisdiction lies with the learned Magistrate for taking cognizance u/s.190 CrPC, which is derived from three sources i.e. (a) upon complaint constituting the offence; (b) upon a police report; and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. These three sources are referred-to under sub-Sec.(1) of Section 190 CrPC. Undisputedly, the present Misc. Petitions are not covered under Clauses (a) and (c) of sub-section (1) of Section 190 CrPC but the learned Magistrate has derived the jurisdiction under Clause (b) of sub-section (1) of Section 190 CrPC, whereby he can take cognizance on the basis of police report. The facts in the present petitions are very peculiar. Accused Ravi Shanker Mathur was arrested on 15.11.06 and he moved an application u/s.167(2) CrPC for releasing him 10 on bail, as the chargesheet was not filed within the stipulated time of ninety days. Then, in hurry, the police submitted the chargesheet on 10.2.07 against accused Ravi Shanker Mathur and kept the investigation pending u/s.173(8) CrPC against the petitioners. The basis of this chargesheet was audit report but later on, when further investigation was made u/s.173(8) CrPC, the police came to the conclusion that the audit report was based on the probabilities and suppositions and there was a total lack of facts and evidence. 9. Upon completion of further investigation, when a report is submitted, it is termed as a report under sub- section (2) of Section 173 CrPC i.e. a complete report. A report, which is incomplete, cannot be the basis for taking cognizance u/s.190(1)(b) CrPC and taking cognizance by the magistrate on the basis of incomplete report against an offender for a particular offence, will certainly result in miscarriage of justice and acting upon it, will be an abuse of the process of law, being an act of jurisdictional error. In such a situation, this Court will not hesitate to interfere in the impugned order of taking cognizance by exercising the powers u/s.482 CrPC, which has been permitted by this Court in its 11 earlier order. 10. Consequently, these Misc. Petitions are allowed and the order of the learned Judicial Magistrate, First Class, Sardar Shahar, Distt.Churu dt.27.2.2007 taking cognizance against the petitioners in F.I.R.No.169/06 of Police Station, Sardar Shahar for the offences u/ss.409, 420, 467, 468, 471, 201 and 120B IPC is quashed and set aside. However, the learned Magistrate shall be free to apply his mind afresh on the basis of the police report or on the protest petition, if it is filed by any aggrieved party. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS