CRIMINAL MISCELLANEOUS No.23132 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure --------------- Anita Devi, Wife of Ramanuj Kumar @ Manoj , resident of Brahampur, Police Station Gourichak, District-Patna, at present residing at Lalbagh, Mahendru, Police Station- Pirbahore, District-Patna --------------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Lallan Kumar, Inspector of Police, Incharge Gopalpur Out Post,Patna --------------------------- Opp.Parties. P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, who complained before the police that her in-laws had tortured her for extracting dowry , has come before this Court for quashing of an order of cognizance dated 31.1.2000 in Case No.135(2) of 2000 passed by the learned Chief Judicial Magistrate, Patna, whereby the learned Chief Judicial Magistrate has taken cognizance of offence under Section 182 of the Indian Penal Code against the petitioner. 2. Short fact of the case is that the petitioner had earlier filed a written complaint before the Officer Incharge of Gaurichak ( Phulwari Out Post) Police Station alleging therein that she was tortured by her in- laws for extracting dowry. On the basis of the said written report, an F.I.R. vide Gaurichak ( Phulwari) P.S.Case No.526 of 1999 was registered on 16.12.1999 . However, after investigation on the direction of the concerned Superintendent of Police, final report was submitted mentioning therein the allegation as untrue and it was also recommended to prosecute the petitioner, who was the informant in the case, for 2 offences under Sections 182 and 211 of the Indian Penal Code. The final report was submitted on 28.1.2000 and thereafter the learned Magistrate by its order dated 31.1.2000 took cognizance of the offence under Section 182 of the Indian Penal Code and transferred the case to the court of Sri P.N.Sharma, learned Judicial Magistrate, 1st Class, for its enquiry and disposal . 3. Aggrieved with the order dated 31.1.2000, the petitioner approached this Court by filing the present petition and by the order dated 20.9.2001, this petition was admitted for hearing and while admitting the case, this Court further directed that in the meantime, further proceeding in Case No.135 ( C) of 2000/908 of 2000 pending in the court of Sri Panchanan Sharma, Judicial Magistrate, 1st Class,Patna shall remain stayed and since then the order of stay is still continuing. 4. Sri Chitranjan Sinha, learned Senior Counsel appearing on behalf of the petitioner, while challenging the impugned order submits that the impugned order is out and out illegal. It was submitted that apprehending that police may not do justice with the case, the informant had filed a protest petition in Gaurichak ( Phulwari ) P.s. Case No.526 of 1999 in the court of the learned Chief Judicial Magistrate on 28.1.2000 itself. Subsequently, the protest petition was treated as complaint petition and it was numbered as Complaint Case No.465 (C) of 2000. It was submitted that the enquiry in the said complaint was going on. It was further submitted that in the meanwhile, a non-F.I.R. prosecution report was submitted by the police on 28.1.2000 itself with an accusation to prosecute the petitioner for offence under Sections 182 and 211 of the 3 Indian Penal Code. 5. During the course of hearing, learned counsel for the petitioner has produced certified copy of the ordersheet of Complaint Case No.465(C) of 2000 , which is from 18.12.1999 to 24.3.2000. Let it be kept on record. On the basis of this ordersheet, it was submitted by Sri Sinha, learned Senior Counsel for the petitioner that final report was accepted only on 24.3.2000 and by the same order, the learned Magistrate, directed for hearing the protest petition on the complaint side. It was submitted that once the final report submitted by the police was itself not accepted by the learned Magistrate prior to order of acceptance of the final report, the learned Magistrate was not required to act upon the non-F.I.R. prosecution report and accordingly, the order dated 31.1.2000, whereby the learned Magistrate has taken cognizance of the offence can be termed as premature and liable to be quashed. This order was unwarranted. It was submitted that without taking final decision on the final report, the learned Magistrate was not required to pass order of cognizance in Case No.135 (2) of 2000. It was submitted that once the order on prosecution report was passed on 31.1.2000, hearing on acceptance of the final report had become meaningless and, as such, the procedure adopted by the learned Magistrate was contrary to the established practice and procedure. It was further submitted that since the learned Magistrate has already passed an order for hearing on the complaint side on the protest petition filed by the informant, the learned Magistrate was required to keep the prosecution report in abeyance till the final result of the enquiry in the complaint petition, i.e. Complaint 4 Case No.526 of 1999. Accordingly, it has been prayed that order impugned is liable to be set aside. 6. Sri Jharkhandi Upadhaya, learned Addl. Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioner. He submits that there is no defect in the order of cognizance dated 31.1.2000. It was argued that since the non- F.I.R. Prosecution report was filed by the police and there were materials on record to proceed with the case, the learned Magistrate, while passing the impugned order, has committed no error. Accordingly, he has prayed to reject the present petition. 7. Besides hearing learned counsel for the parties, I have perused the materials available on record including certified copy of the order dated 24.3.2000 passed in Complaint Case No.465 (C) of 2000. I am of the opinion that once the complaint petition in the same proceeding was proceeded for enquiry, the learned Magistrate should have restrained himself to proceed with the non-F.I.R. prosecution report submitted by the police. Moreover, without acceptance of the final report after giving due notice to the informant, the learned Magistrate was completely unauthorized to proceed with the prosecution report submitted by the police. The order shows that the final report, which was submitted in Gaurichak( Phulwari ) Police Station was accepted on 24.3.2000 and by the same order, the learned Magistrate had directed to hear the protest petition on complaint side. Meaning thereby, the learned Magistrate was satisfied that enquiry on complaint side was necessary. Without completion of enquiry as well as without acceptance of the final report, 5 the order of cognizance on the prosecution report submitted by the police was unwarranted and illegal. 8. Considering the facts and circumstances of the case, the Court is satisfied that allowing the prosecution of the petitioner on the basis of order dated 31.1.2000 will amount to allowing the abuse of the process of the Court. 9. Accordingly, the order of cognizance dated 31.1.2000 passed in Case No.135 (2) of 2000/ 908 of 2000 by the Chief Judicial Magistrate,Patna is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 12th July,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J)