- (1.) ALL the three misc petitions arise out of the order dated 10.9.2007 passed by Special Judge, Dacoity Affected Area, Bharatpur. The order dated 19.4.2007 passed by Judicial Magistrate No.2, Bharatpur taking cognizance for offence under sections 302 and 120 -B IPC against petitioners was upheld vide the order dated 10.9.2007.
(2.) BRIEF facts of the case are that an alleged accident took place in the night of 13/14.12.1996 wherein one Bharat Bhushan was found injured on the road. He was taken to the hospital initially at Bharatpur and thereafter to Jaipur. He died on 18.12.1996. Complainant - Banwari Lal lodged an FIR stating therein that on 12.12.1996 his son Bharat Bhushan (deceased) came to Bharatpur from Mathura to participate in a marriage. On 13.12.1996, at around 1.00 PM, he was to proceed to Gwalior. At that time, one Lokesh son of Om Prakash came on the scooter to drop him at the bus stop. Accordingly, Bharat Bhushan went with him. In the mid night of 13/14.12.1996 at around 1.00 AM Lokesh's mother and his brother came to the complainant house informing that Lokesh and Bharat Bhushan met with an accident near Chiksana. Bharat Bhushan was then taken to the hospital where he died on 18.12.1996. The FIR was lodged showing it to be death under suspicious conditions and as a outcome of conspiracy. FIR No.243/1996 was lodged in Police Station Chiksana. After investigation in FIR No.243/1996, charge sheet was filed for offence under sections 304 -A and 279 IPC along with section 185 of Motor Vehicle Act. The trial court thereafter read the substance against Lokesh under section 279 and 304 -A IPC. A separate FIR bearing No.636/1996 was lodged by Police Station Mathura Gate, Bharatpur at the instance of one Prashant Gupta son of Jai Kishan Khandelwal on 14.12.1996 at 9.30 AM, alleging theft of scooter bearing No. RJ 05 M 9698. After investigation therein, charge sheet was filed against Lokesh for offence under section 379 IPC. Complainant Banwari Lal thereafter submitted complaint on 27.3.1998. Therein, allegations were made for commission of offence under sections 109, 120, 214 and 302 IPC against Lokesh and eleven others. Learned Magistrate sent for the report under section 156(3) CrPC to the Police Station ? Chiksana. Without registering the FIR, investigating agency sent the complaint back to the court mentioning that for the same incident, FIR No.243/1996 had already been registered.
(3.) THE complainant, thereafter, lodged another complaint on 2.12.1998 against police personnel for offence under sections 120 -B, 201, 204, 217 and 129 IPC. THE impugned order has been passed pursuant to both the complaints lodged by the complainant. Learned counsel for petitioners submit that it is a case where pursuant to the FIR submitted by the complainant, investigation was made followed by submission of charge sheet for offence under sections 304 -A, 279 IPC and section 185 of Motor Vehicle Act. In regard to the same incident, second FIR is not permissible. However, ignoring the aforesaid, order of cognizance was passed vide impugned order. This is more so when in the earlier FIR, cognizance and subsequent orders were passed after hearing complainant. It was purely a case of accident and no material exists for taking cognizance for offence under section 302 and other provisions of IPC. The order of cognizance is based on presumption, whereas, it is settled law that cognizance order should not be passed on presumptions. The court below has thus reviewed its order while passing the impugned cognizance order. When pursuant to the FIR cognizance was taken for the offence under sections 304 -A and 279 IPC and section 185 of Motor Vehicle Act, subsequent cognizance order for offence under section 302, 120 -B IPC is nothing but reviewing its own order whereas no such jurisdiction exists with the court below. It is a case where for same incidence now two stories have taken shape by two different cognizance orders. The aforesaid is not legally permissible. The complainant, in fact, could have resorted to the remedy at the stage when police had refused to register the case pursuant to the provisions of section 156(3) CrPC. An order of cognizance passed under these circumstances, is not tenable in the eye of law. Learned counsel appearing in Dhanesh Sharma's case additionally submitted that he was investigating officer in the subsequent FIR No. 636/1996 and had submitted charge sheet accordingly but cognizance order has been taken presuming him to be investigating officer in FIR No.243/1996. Petitioner Dhanesh Sharma has been called by issuing warrant of arrest whereas cognizance is for bailable offence. Thus, there exists additional reason to set aside the order.;