Crl. Misc. No.M-13952 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-13952 of 2008 Date of Decision: 21.01.2011 Shri G. Shravan Kumar and others ....Petitioners Versus State of Haryana and another ....Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Akshay Bhan, Advocate for the petitioners. Mr. Amit Rana, D.A.G., Haryana for the respondent-State. Mr. Sanjay Majithia, Sr. Advocate with Mr. Jashanpreet Singh, Advocate for respondent No.2. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 Cr.P.C for quashing of impugned complaint No.49 dated 12.08.2006 titled as Smt. Suman vs. Shrawan Kumar and others pending before the Court of Additional Chief Judicial Magistrate, Hisar for 21.07.2008 and impugned summoning order dated 26.04.2008 and all consequential proceedings arising therefrom. Crl. Misc. No.M-13952 of 2008 2 A Criminal complaint under Section 156(3) of the Cr.P.C was filed by respondent No.2 against the present petitioners and two unmarried sisters of petitioner No.1 before the Additional Chief Judicial Magistrate, Hisar on 12.08.2006, wherein, the allegations of demand of dowry and harassment have been levelled by the present respondent No.2 against the present petitioners and two unmarried sisters of petitioner No.1. On the basis of the complaint, directions were issued by the Additional Chief Judicial Magistrate, Hisar to the SHO, Police Station Civil Lines, Hisar to register FIR. In compliance of the aforesaid direction, an FIR No.396 dated 15.08.2006 was registered by the SHO under Sections 406, 498-A, 506 of IPC and Sections 3, 4 of the Dowry Prohibition Act, 1961 at Police Station Civil Lines, Hisar. Thereafter, the allegations levelled in the aforesaid complaint and FIR were investigated by the Investigating authority and all the allegations levelled by respondent No.2 against the present petitioners and other persons were found to be false. In view of this, a cancellation report dated 24/25.10.2006 was submitted by the Investigating Authority with the Additional Chief Judicial Magistrate, Hisar on 07.02.2007 with a request to cancel the FIR by accepting the aforesaid cancellation report. The notice was issued by the Additional Chief Judicial Magistrate, Hisar to respondent No.2 on receipt of the aforesaid cancellation report dated 24/25.10.2006. On receipt of the notice of aforesaid cancellation report, a protest petition dated 11.08.2007 was filed by respondent No.2 against the aforesaid cancellation report. After the filing of aforesaid protest petition, the matter was taken up for hearing by the Additional Chief Judicial Magistrate, Hisar on 07.12.2007 to consider the cancellation report submitted by the police. The aforesaid cancellation report was accepted by the Additional Chief Judicial Magistrate, Hisar vide order dated 07.12.2007, however, the present respondent No.2/complainant was Crl. Misc. No.M-13952 of 2008 3 directed to lead preliminary evidence in support of the protest petition. The present petitioners thereafter were summoned by the Additional Chief Judicial Magistrate, Hisar vide impugned summoning order dated 26.04.2008 to face trial under Sections 406/498-A of IPC on the basis of statement of respondent No.2 and her father as PW1 and PW2 respectively. Aggrieved, the present petitioners inter-alia on various grounds, have filed petition under Section 482 of the Code of Criminal Procedure challenging the order dated 07.12.2007. The first argument raised by learned counsel for the petitioners and as enumerated from above, is that the complaint viz FIR No.396 dated 15.08.2006 was closed and the closure report in respect of the same was accepted by the Additional Chief Judicial Magistrate, Hisar vide order dated 07.12.2007 and the learned Magistrate erroneously in violation of the provisions of the Code of Criminal Procedure had ordered the recording of evidence in the protest petition. Learned counsel for the respondent, on the other hand, vehemently opposed the petition and submitted that the respondent has a right to prove the complaint for matrimonial offence against the petitioners. The petitioners are highly placed and influential people. It was further submitted that the cancellation report shows that the SHO of Police Station Civil Lines, Hisar has only tried to improbalise the allegations as made out in the complaint by having an approach of sycophancy that the accused persons are so well and highly placed in their respective fields that they cannot make petty personal de-meaning demands of dowry and that the final report submitted by the police can be ignored by the Magistrate and the Magistrate can act on the private complaint filed by the party and already pending in the Court. A protest petition filed could also be treated as a complaint and the Magistrate can proceed in accordance with Crl. Misc. No.M-13952 of 2008 4 procedure as laid down under Sections 200, 202 and 204 Cr.P.C and reliance was placed on the judgment of Allahabad High Court titled as Ashok and others vs. State of U.P and another reported as 1994 Crl. L.J. 2132, judgment of Hon'ble the Supreme Court titled as M/s India Carat Private Limited vs. State of Karnataka and another reported as 1989 Supreme Court Cases (Crl.) 306, H.S. Bains, vs. The State (Union Territory of Chandigarh) reported as 1980 Crl. L.J. 1308 and the judgment of Madras High Court titled as Chelliah vs. Yesuvadial reported as 1999 Crl. L.J. 1013. Learned counsel for the parties were heard. There is no dispute with the proposition of law that the Magistrate has power to take cognizance under Section 190(1)(b) of the Cr.P.C on the police report irrespective of the opinion of the Investigating Officer that prima facie no case is made out. If on perusal of the police papers, he is satisfied that there is sufficient material to make out a prima face case against the accused, he can also take cognizance on the basis of protest petition without following the procedure prescribed under Chapter XV. It is not disputed that the Magistrate had followed the procedure as laid down under Section 200, 202 and 204 Cr.P.C before issuing the summoning order. However, the question involved in the present case is as to whether the Magistrate could have initiated recording of evidence on the protest petition in spite of accepting the cancellation report. In case, the report was accepted, the Magistrate could not have proceeded with the protest petition. However, if the protest petition was converted into a complaint case, then the cancellation report should not have been accepted. The order is contradictory in itself. The same reads as under :- “ Present : Complainant in person with Shri P.C. Mittal, Advocate Crl. Misc. No.M-13952 of 2008 5 Arguments on cancellation report heard. Report perused. Cancellation report submitted by the police is hereby accepted. However, the complainant is not satisfied with the cancellation report submitted by the police. The complainant has already filed the protest petition to pursue the present case further. Now to come upon 15.12.2007 for recording the preliminary evidence of the complainant in support of her protest petition.” Learned counsel for the respondent, however, tried to justify the same by stating that the said order is not happily worded and appears to be simply irregular. Hon'ble the Supreme Court in the case of Hemant Dhasmana vs. Central Bureau of Investigation and another reported as 2001(7) Supreme Court Cases 536 have listed three options opened to the Magistrate to exercise when a final report is submitted by the police i.e. (a) to accept the report; (b) to disagree with the report and issue process under Section 190(1)(b) Cr.P.C or in the alternative, he can take cognizance of the original complaint and examine the complaint and witnesses and, therefore, issue process to the accused if he is of the opinion that the case should be proceeded with. (c) to exercise power under 173(8) Cr.P.C and order further investigation to be made by the police. In the present case, the Magistrate has exercised both the above (a) and (b) options which is contradictory on the face of it and cannot be sustained. In view of the above, the present petition is partly allowed to the extent that the order dated 07.12.2007 and consequently the summoning order dated 26.04.2008 passed by Additional Chief Judicial Magistrate, Hisar is set aside and the matter is remanded back to the Magistrate to pass fresh order in accordance with law after hearing both Crl. Misc. No.M-13952 of 2008 6 the parties. Matter is pending since long. Accordingly, the Magistrate is directed to pass the order within one month of the receipt of the order and the parties are directed to appear before the Court on 10.02.2011 (NIRMALJIT KAUR) 21.01.2011 JUDGE gurpreet