V.P.Mathur - (1.) THIS criminal revision is directed against the order passed by Mr. R. S. Misra, Judicial Magistrate, Mirzapur on 3-12-1986 in criminal case no. 83 of 1986 State v. Shaukat Ali and others through which he has summoned the applicant and others for offences punishable under sections 147 148, 149 and 323 of the IPC.
(2.) BRIEFLY stated the facts are that Imamul Haq opposite party no. 2 had filed a first information report in respect of a cognizable offence under sections 147, 148 and 149 IPC and some other offences. An investigation was made and a final report was submitted. This final report was accepted by the learned Magistrate after which a protest petition was moved along with some affidavits and the learned Magistrate passed the impugned order dated 3-12-1986 taking cognizance of the matter and straightway summoning the applicant and others to stand their trial for the offences complained of. The contention of the revisionist is that after accepting the final report once, the Magistrate was not entitled to take cognizance of the case and in any view of the matter if a cognizance had to be taken, it could be taken under section 190 (1) (b) of the Code of Criminal Procedure treating the protest petition as a complaint and the procedure of the complaint cases had to be followed i.e. statement under section 200 OrPC had to be recorded and then the Magistrate had to decide whether he wanted to proceed forthwith or to enquire into the matter himself or through some other agency. It is contended that it was not open to the learned Magistrate to proceed by summoning the petitioner and others straightway as is done in cases of police report. Two important points for decision arise in this case : namely (i) whether after once accepting a final report, the Magistrate can under any circumstance proceed with the case under section 190 (1) of the Code of Criminal Procedure; (ii) Whether it is possible for the Magistrate to proceed under section 191 (1) (a) or (b). In the case of Munilal Thakur v. Nawal Kishore Thakur, 1985 CrLJ 437 Patna High Court considered a similar case. The question before the Division Bench was whether a Magistrate even after accepting the final report filed by the police can still take cognizance of an offence upon a complaint or a protest petition on the same or similar allegations of fact. The Division Bench of Patna High Court looked into the law laid down in the case of Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117, and the case of Tula Ram v. Kishore Singh, AIR 1977 SC 2401 ; as also the case of H. S. Bains v. State (Union Territory of Chandigarh), AIR 1980 SC 1883 = 1980 AWC 619 = 1980 ACrR 423 and after considering all these cases as well as the Supreme Court case of Gopal Vijay Verma v. Bhumeshwar Prasad Sinha, (1982) 3 SCC 510 came to the conclusion that even after accepting a final report once, the Magistrate can take cognizance on the basis of the complaint petition.
(3.) THE most important case for consideration before the Division Bench was of Gopal Vijay Verma (supra). This was a matter which went to the Supreme Court against a Single Judge decision of the Patna High Court in the matter of Bhumeshwar Prasad Sinha v. State of Bihar, 1981 CrLJ 795. A question identical with the present was one raised before a single Judge of the Court. THE learned Judge while quashing the cognizance of the offence, made the following observation : " If the Magistrate takes cognizance on the basis of the complaint petition then in that case he should not accept the final form. If once he accepts the final form then on the same facts constituting the offence, he is not entitled to take cognizance on the basis of the complaint petition or protest petition because that will result in two inconsistent orders passed by the Judicial Officer. " It was also observed with reference to Abhinandan Jha's case (supra) :- In that case it has been held by the Supreme Court that if the Magistrate agrees with the opinion of the police, he may accept the final report and close the proceedings. It will be deemed that the proceedings against the accused persons in respect of the facts constituting the offence have been closed by the Magistrate in a judicial proceeding. If it is so, such proceeding can only be set aside in revision by a higher authority. Unless and until the order is not set aside, the Magistrate is not entitled to take cognizance on the basis of the complaint petition or protest petition in respect of the same facts constituting the offence as mentioned in the final form............ " Against this order, an appeal was taken before the Supreme Court in the matter of Gopal Vijay Verma, 1982 (3) SCC 510 (supra). It came up before a Bench presided over by Chinnappa Reddy, J. who, as will be noticed, was also a party to the judgment in the case of H. S. Bains, 1980 AWC 619 = 1980 ACrR 423 (supra). Categorically reversing the High Court's order Their Lordships summarily disposed of the matter by the following order : "The High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report- The order of the High Court is set aside. The matter is remitted to the Chief Judicial Magistrate, Patna for disposal according to law.........." It means, therefore, that the view that once a final report is accepted, the Magistrate who acts judicially can not proceed against the accused persons in respect of the facts constituting same offence under any circumstances whatsoever and even on a complaint petition, because, if he does so, he would be acting against his previous order, closing the proceedings, is not a correct view of the matter The Supreme Court is of the view, inspite of the cases of H. S. Bains and Abhinandan Jha (both supra) that the Magistrate can take cognizance of the case upon a complaint, even if he had earlier refused to take cognizance ";