CRM No. M-33953 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. M-33953 of 2010 (O&M) Date of Decision:05.12.2011 Nishan Singh and others ........Petitioners Versus State of Punjab and another ........Respondents CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. D.S. Pheruman, Advocate, for the petitioners. Mr. G.S. Brar, AAG, Punjab for respondent No.1. Mr. Sachin Sharma, Advocate for respondent No.2. ***** AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in this petition is for quashing of FIR No. 140 dated 27.04.2007 registered under Sections 326, 324, 148, 149 IPC, Police Station Sadar Amritsar (Annexure P-2) and to quash all the subsequent proceedings arising therefrom including the order dated 11.09.2008 in which the cancellation report (Annexure P-4) submitted by the police was not accepted and charge sheet dated 09.01.2009 (Annexure P-5), whereby the petitioners have been charged under Section 324/34 IPC. It is the contention of the counsel for the petitioners that the present FIR has been initiated against the petitioners with a malafide intention and to pressurize the petitioners to withdraw the earlier FIRs registered against respondent No.2/complainant under Sections 406, 420 IPC. His further contention is that the injury which has been attributed to petitioner No.1 in the FIR is infact self-inflicted wound by the complainant CRM No. M-33953 of 2010 (O&M) -2- and the doctor in his opinion has also not ruled out the possibility of the injury having been suffered with a friendly hand . Reliance has also been placed upon the enquiry report of the Superintendent of Police City-II Amritsar dated 25.08.2008, where on appreciation of the records and investigation conducted by the police, opinion has been expressed that a false place of occurrence has been shown and false case was got registered by respondent No.2/complainant and recommendation was made for submission of cancellation report in Court, which actually has been submitted but has not been accepted by the trial Court. His further contention is that the Additional Chief Judicial Magistrate while rejecting the cancellation report has only relied on the evidence collected which is part of investigation report submitted by the police and has not recorded any independent evidence in the form of statement on oath of the complainant or other evidence which would a fulfil the requirement of Section 190(1) Cr.P.C. in case it is treated to be a complaint case. Section 200 Cr.P.C. mandates recording of the statement of the complainant on oath which having not been done by the trial Court while issuing summons to the petitioners vide impugned order dated 11.09.2008. The said order can not sustain and he accordingly prays for quashing of FIR and the impugned order. On the other hand, counsel for the respondents submits that the FIR registered was against him under Sections 420, 406 IPC which was lodged by petitioner No.1 but now respondent No.2 stands acquitted by the trial Court vide judgment dated 17.01.2011 (Annexure R-2/1). He contends that the present FIR is the outcome of the offence committed by three petitioners in connivance with each other alongwith two others, who are not known to the complainant. The injury was given by sword on the complainant which has been found to be muscle deep and merely because an opinion has been expressed by the doctor that the possibility of the CRM No. M-33953 of 2010 (O&M) -3- injury having been obtained by a friendly hand, would not conclude that the incident has not taken place. As regards the submission made by the counsel for the petitioners that the report submitted by the police for cancellation of the FIR can be made the sole basis to summon the petitioners without following the procedure as prescribed under Section 200 Cr.P.C., he contends that the Court can do so. He relies upon the judgment of Hon'ble the Supreme Court in the case of Messrs India Carat Pvt. Ltd Versus State of Karnatka, 1989 Vol.I RCR (Criminal) 395 in support of this submission. He accordingly, prays for dismissal of the present petition. I have heard counsel for the parties and gone through the record of the case. It is correct that FIR No.95 dated 08.04.2006 under Sections 406, 420 IPC was registered against the complainant-Karamjit Singh by petitioner No.1 wherein, it was alleged that he had fraudulently encashed the cheque which he had stated to have been destroyed and because of which he took another cheque for ` 1,35,000/-. But in the light of the fact that the complainant stands acquitted by the trial Court vide its judgment dated 17.01.2011 (Annexure R-2/1), the said submission can not be now made the basis for coming to a conclusion at this stage that the present FIR is counter blast or has been got registered with an intention to put pressure on the petitioner to take a particular stand in the said FIR. As regards the contention of the counsel for the petitioners that the doctor has given his opinion that the blow on the right arm of the complainant could be self inflicted injury or with a friendly hand, can not at this stage be made the basis to come to a conclusion that it was so. Merely because such an opinion has been expressed by the doctor, it can not be ruled out that the injury was infact genuinely suffered by the complainant at the hands of petitioner No.1 Nishan Singh when it has been stated that the said injury was inflicted by kirpan and found to be muscle deep by the CRM No. M-33953 of 2010 (O&M) -4- doctor as is apparent from the medico legal report. Reliance on the enquiry conducted by the Superintendent of Police City-II Amritsar dated 25.02.2008 also would not cut any ice as the two reasons for coming to the conclusion that the case was false were (i) the fact that the FIR has been got registered by the petitioners against the complainant and (ii) doctor had opined the sole injury suffered by the complainant with a sharp edged weapon on the arm could be an injury, which could be suffered with a friendly hand,stands repelled above by me. As regards the contention of the counsel for the petitioner that the trial Court while rejecting the cancellation report without recording the statement of the respondent and following the procedure as contained under Section 200 Cr.P.C. can not summon the petitioners, can not be accepted in the light of the judgment of Hon'ble the Supreme Court in the case of Messrs India Carat Pvt. Ltd's case (Supra) where, in similar facts and circumstances of the case Hon'ble Supreme Court in para Nos. 14 and 16 held as follows: "14. Since in the present case the Second Additional Chief Metropolitan Magistrate has taken cognizance of offences alleged to have been committed by the second respondent and ordered issue of process without first examining the appellant and his witnesses, the question for consideration would be whether the Magistrate is entitled under the Code to have acted in that manner. The question need not detain us for long because the power of a Magistrate to take cognizance of an offence under Section 190 (1) (b) of the Code even when the police report was to the effect that the investigation has not made out any offence against an accused has already been examined and set out by this Court in Abninandan Jha & ors. V. Dinesh Misra, 1967(3) SCR 668 and H.S. Bains Vs. State, 1981 (1) SCR 935. In Abinandan Jha & ors V.Dinesh Misra, (supra) the question arose whether a Magistrate to whom a report under Section 173 (2) had been submitted to the effect that no case had been made out against the accused, could direct the CRM No. M-33953 of 2010 (O&M) -5- police to file the charge sheet on his disagreeing with the report submitted by the police. This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necesssary he might make an order to that effect under Section 156 (3) and if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the Magistrate could take cognizance of the offence, notwithstanding the contrary opinion of the police, the Court observed that the Magistrate could take congnizance under Section 190(1)(c). The reference to Section 190 (1) (c) was a mistake for Section 190 (1) ( b ) and this has been pointed out in H.S. Bains (supra). xxx x xxx x xxx 16. The position is, therefore, now well settled that upon receipt of a police report under Section 173 (2) a Magistrate is entitled to take cognizance of an offence under Section 190 (1) ( b ) of the Code even if the Police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take congnizance of the offence complained of and order the issue of process to the accused. Section 190 (1) (b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer; and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his power under Section 190 (1) (b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of the case under Section 190 (1) (b) though it CRM No. M-33953 of 2010 (O&M) -6- is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second repondent and order the issue of summons to him." This view has been reiterated by the Hon'ble Supreme Court in the case of Uma Shankar Singh Versus State of Bihar and another 2010 (4) RCR (Criminal) 363. In the light of the above law laid down by Hon'ble the Supreme Court , the present petition can not survive and therefore, deserves to be dismissed. Ordered accordingly. 05.12.2011 (AUGUSTINE GEORGE MASIH) harjeet JUDGE