SATISH KUMAR MITTAL,J - (1.) THE petitioner, who claims himself as Mahant of Dera Bhai Diala Jee, has filed this petition under Section 482 of the Code of Criminal Procedure for quashing of the order dated 23.10.2001, passed by Judge, Special Court, Bathinda, whereby the cancellation report submitted by the police in case F.I.R. No. 17 dated 30.3.2001 under Section 18/61/85 of the N.D.P.S. Act, registered at Police Station Dialpura, against the petitioner, was not accepted, and the investigating agency was directed to present the challan in the said case.
(2.) IT is the case of the petitioner that due to the dispute over possession of the land of the Dera, one Santokh Singh, who was having no right over the land of the Dera and wanted to forcibly dispossess the petitioner from the land; got lodged the aforesaid F.I.R. against him in connivance with A.S.I. Om Parkash, In-charge Police Post Bhagta Bhai Ka Police Station Dialpura. In the said F.I.R., petitioner was alleged to have been found in possession of 500 grams of opium as well as .315 bore unlicensed revolver. After the investigation, on the representation of the villagers, enquiry of the said case was marked to D.S.P. Crime, who in a thorough enquiry found that a false case was poised upon the petitioner. Therefore, cancellation report was recommended, which was accepted by A.D.G.P. Crime, Punjab as well as S.S.P., Bathinda, and thereafter the cancellation report was submitted to the court, copy of which has been placed on record as Annexure P-4. While considering the cancellation report, the Judge, Special Court, Bathinda, recorded the statement of S.I. Gurdip Singh, Investigating Officer of the case. Thereafter, he rejected the cancellation report and thereafter passed the following order on 23.10.2002 : "This is cancellation report submitted by S.P.(D), Bathinda in case F.I.R. No. 17 dated 30.3.2001. Earlier also the cancellation report was submitted in the Court but it was returned to the police station concerned for further action in the matter as the Investigating Officer did not appear despite issuance of summons on many dates, and it was returned vide my separate detailed order dated 2.4.2002 attached with the file. 2. S.I. Gurdip Singh, who is the Investigating Officer of this case has been examined on 23.10.2002 in connection with the report. In the report submitted, it is mentioned that the case has been planted falsely upon Satnam Singh S/o Hakam Singh. S.I. Gurdip Singh in his statement has clearly deposed that on 30.3.2001 he alongwith other police officials raided the house of accused in the presence of D.S.P. Amrik Singh and 500 grams of opium was recovered wrapped in glazed paper from the right Khisa of Chola of accused. He further deposed about taking sample and other formalities of investigation. 3. From the statement of S.I. Gurdip Singh prima facie case is made out against the accused and, as such the report submitted does not seem to be genuine. As such I disallow the cancellation report and direct the prosecution to present the challan against the accused immediately. File be returned to prosecution." (underline added) The aforesaid order has been challenged in this petition.
(3.) COUNSEL for the petitioner contends that on the basis of the material available on the record, it is for the court to accept or not to accept the cancellation report submitted by the police. The court can accept the report or reject it and order for further investigation. The court itself can take cognizance of the offence, if it prima facie finds the material available on the record against the petitioner, but the court has no jurisdiction while rejecting the cancellation report to direct the prosecuting agency to present challan against the accused. Counsel contends that in this case, Judge, Special Court, Bathinda, has acted illegally and without jurisdiction while directing the prosecution to present the challan against the accused. Therefore, the impugned order is liable to be set aside.;