- (1.) This is a petition under Section 482 of the Cr.P.C for quashing of Complaint no.28 of 05.05.2001 titled as Mohinder Kaur vs. Nishan Singh and others (Annexure P-5), the summoning order dated 09.10.2003 (Annexure P-6) and Order dated 16.01.2006 (Annexure P-7) and the subsequent proceedings thereto pending in the Court of Judicial Magistrate Ist Class, Dasuya.
(2.) The only argument raised by learned counsel for the petitioners is that the respondent had lodged FIR No.9 dated 17.03.2000 under Sections 436 and 429 IPC at Police Station Talwara, District Hoshiarpur on the same set of allegations as the present complaint. The said FIR has been placed on record as Annexure P-1. The police investigated the matter and filed the untraced report. The Judicial Magistrate Ist Class, Dasuya after receiving the untraced report, recorded the statement of the respondent that she had no objection, if the case is cancelled. Resultantly, the Magistrate keeping in view the statement of the complainant, ordered to consign the file to the record room as Adam Patta. Thereafter, after the lapse of one month, the respondent filed a protest petition/complaint under Sections 448, 449, 452, 453, 436 and 429 IPC against Inderjit Singh, Mandeep Singh, the present petitioners and another Nishan Singh on 03.05.2001. The petitioners have been summoned in the said case to face trial, whereas, the very complaint was not maintainable. It was contended that the Judicial Magistrate Ist Class, Dasuya had no power to entertain the complaint, once the cancellation report in the FIR had been accepted. 3 Reliance was placed on the judgment of Patna High Court in the case titled as Bhuneshwar Prasad Sinha and others vs. The State of Bihar and another, 1981 CrLJ 795, wherein, it was held that " the Magistrate was not justified in taking cognizance in respect of the same facts constituting the offence which were mentioned in the final form. In order to check the litigation it is necessary that when a judicial order is passed by accepting the final form such order should not be set aside by the Magistrate by taking cognizance on the basis of the complaint petition." 4. Learned counsel for the respondent, on the other hand, submitted that the charges were framed way back on 15.09.2009. Three witnesses have already been examined. The petitioners after almost six years of the summoning order and after four years of the dismissal of the application for discharge, has filed the present petition. Moreover, they had not challenged the order framing charges. It is further contended that the Magistrate had neither accepted nor rejected the untraced report. 5. Heard. 6. There is no dispute with the judgment rendered by Patna High Court in the case titled as Bhuneshwar Prasad Sinha and others . However, the facts in the present case are slightly different. A perusal of the statement of the complainant shows that she had, at no stage, the intention to give up the prosecution against the petitioners. The same reads as under:- " FIR No.9/17.3.2000 U/s 436/429 IPC Police Station: Talwara Statement of Mohinder Kaur wife of Ashok Kumar age 40 years, Police Station Talwara. On dated 16.3.2000, in the night I went to my home after tiding my cattles and in these cattles, there was 3 buffaloes, two calf, two bachhian and house hold articles like Sofa, Bed, Cycle etc. were kept. These were put under fire by unknown person. Due to which one cow and two calf were died and one calf received burn injuries seriously. I am confident that this fire has broken out by Inderjit Singh and Mandip Singh sons of Daljit Singh resident of Talwara. No action has been taken by the police against the accused on my asking repeatedly. Now if this FIR is cancelled I have no objection." 7. The entire statement has to be read in to to. The respondentcomplaint is dissatisfied with the investigation. Since, she did not expect any fair justice at the hands of the police, she gave her no objection to the cancellation of the FIR. Otherwise, specific allegations have been alleged against the petitioners in her statement and there appears to be no intention to give up her fight against injustice done to her. This fact is evident from the above statement which speaks for itself. At the same time, while consigning the file to the record room, the Magistrate appears to have neither accepted nor rejected the said report. The same reads as under:- " Statement of the complainant recorded above, in view of which the file is ordered to be consigned to the record room as Adam Patta." 8. The intention of the respondent that she did not wish to close the matter, is also evident from the fact that immediately thereafter i.e after only one month of the passing of the above order, she filed her protest petition/complaint under Sections 448, 449, 452, 453, 436 and 429 IPC. Her intention to pursue the matter is further borne out from the statement made before the Judicial Magistrate Ist Class, Dasuya on 14.09.2001 while leading evidence in the complaint case, which reads thus; " The police of the Police Station, the photocopy of the same is marked 'B' but at that time my statement was not read over to me by the Police and no action was taken against the accused persons. They are very influential persons. Thereafter the police submitted the untraced report in the Court where I made a statement and filed the protest petition/complaint in the Court. The Talwara Police is helping the accused. The legal action be taken against the accused." 9. Thus, the conduct, action and the statement of the respondent-complainant under no circumstances, indicate that she wanted to finally close the case. In fact, she expressed her dissatisfaction with the police investigation. Her statement giving no objection could not have been read to understand that she did not wish to file a protest petition. The 'no objection' is rather given under protest. Moreover, the Summoning Order was passed on 09.10.2003 and the application for discharge was dismissed on 16.01.2006 but the petitioners have approached this Court on 09.11.2009 i.e after a lapse of about nine years from passing the summoning order and four years of the dismissal of the application for discharge. Meanwhile, three witnesses have already been examined. 10. Thus, to cut short the litigation at this stage when statement of three witnesses have already been recorded would be highly improper in the facts of the case. Dismissed accordingly.;