- (1.) THE instant petition under Section 482 of the Code of Criminal Procedure, 1973 (in short 'the Cr. P. C. ') has been filed against the order dated 29. 3. 2006 passed by the learned Addl. Sessions Judge No. 1, Sikar vide which the revision petition No. 26/2005 has been dismissed and the order dated 1. 12. 2004 of the learned Addl. Judicial Magistrate No. 2, Sikar in Criminal Case No. 95/2004 taking cognizance against the petitioner for the offences under Sections 420, 471, 468 and 120- B I. P. C. has been upheld.
(2.) BRIEFLY stated, the relevant facts giving rise to this petition and necessary for its disposal are that a complaint for the offences under Sections 420, 471, 468 and 120-B I. P. C. came to be filed by complainant Bhuramal against the petitioner and other accused persons with the allegation that the land bearing Khasra Nos. 19, 27/2126, 1101, 1102, 1103, 1924 is situated in village Khud which was ancestral property. After the death of Ramdeen, the complainant and Ram Gopal and Dhanni being his legal heirs came into possession of equal share of the said land. The complainant being the natural son of deceased Ramdeen became legal heir of one third share of his property. After the death of Ramdeen, Ram Gopal and Dhanni in Collusion with Prabhat Kumar, Parmeshwar Lal, Jagdish Prasad, hari Singh, Ranjeet and Durga Devi forged a certificate of inheritance and on its basis got opened mutation in their names in order to deprive the complainant of his share and to grab himself the entire land. They in collusion with Prabhat Kumar and Parmeshwar Lal, got a forged sale-deed executed in respect of the land falling in the share of the complainant. The aforesaid complaint was forwarded to the police under Section 156 (3) Cr. P. C. for investigation. On its/basis, FIR No. 21/2004 came to be registered and after investigation the police found that it was a case of civil nature because the complainant had already filed an appeal against the order of mutation passed by the Tehsildar, Dataramgarh before the Collector, Sikar. The learned APP also opined so on 30. 7. 2004. Accordingly, a negative final report was filed on 31. 7. 2004 before the concerned court. On notice being issued to the complainant, he appeared before the court on 22. 9. 2004 and filed a protest petition on 1. 10. 2004. He sought time to produce evidence in support of the protest petition. The learned Magistrate, however, took cognizance on 1. 12. 2004 without taking his evidence for the offences under Sections 420, 471 and 120-B I. P. C. against the petitioner and for the offences under Sections 420, 468, 471 and 120-B IPC against Ram Gopal and Durga Devi. The said order was challenged by way of a revision petition which was dismissed on 29. 3. 2006 as indicated above. Hence, this petition. Learned counsel for the petitioner has contended that the orders of the learned courts below are illegal which tantamount to gross abuse of the process of the court and deserve to be set aside for securing the ends of justice. It is submitted that the order dated 1. 12. 2004 taking cognizance is against the mandatory provisions of law contained under Sections 200 and 202 Cr. P. C. as well as Chapter XV of the Code. The mutation proceedings are fiscal proceedings which are always subject to correction by the appellate court. His next contention is that the Magistrate has not considered the final report and the reasons mentioned by the investigating agency for submitting the final report. The case is of civil nature and criminal proceedings cannot be lodged and continued in such a matter. He has placed reliance on Nanu Ram vs. State of Rajasthan (2004 (2) Cr. L. R. (Raj.) 1343 ). Learned Public Prosecutor has submitted that the case referred to by the learned counsel for the accused-petitioner is distinguishable on facts. The instant petition tantamounts to second revision which has been filed to circumvent the bar of filing of second revision under Section 397 (3) Cr. P. C. There is neither any abuse of the process of the court nor it is otherwise expedient in the interest of justice to exercise the inherent powers of this Court. According to him, the criminal proceedings can be initiated and proceeded with if the ingredients of the offences are made out. Simply because the mutation order has been challenged in appeal, the complainant cannot be debarred from lodging the criminal case specially when there is clear and unambiguous allegation that the certificate of inheritance has been forged. According to him, the court can very well take cognizance under Section 190 (1) (b) Cr. P. C. on the basis of the negative final report submitted by the police and recording of the statements under Sections 200 and 202 Cr. P. C. is not essential in such a case. The recording of the statements under Sections 200 and 202 Cr. P. C. on the protest petition is essential only when cognizance is taken on the basis of the protest petition as a private complaint under Section 190 (1) (a) Cr. P. C. The learned Magistrate has considered the final report as well as other materials collected during investigation before taking cognizance in the matter. I have considered the respective contentions made at the bar and have also perused the relevant documents placed before me as well as the order dated 1. 12. 2004 of the learned trial Court as well as the order dated 29. 3. 2006 passed by the revisional court.
(3.) IT may be stated at the out set that the learned Magistrate has taken cognizance against petitioner Ram Gopal and Durga Devi, the Sarpanch, on the basis of the negative final report under Section 190 (1) (b) Cr. P. C. He has not taken cognizance under Section 190 (1) (a) Cr. P. C. on a private complaint which he was empowered to do. In M/s. India Carat Pvt. Ltd. vs. State of Karnataka & Anr. (1989) 2 SCC 132) on the basis of a report made to the Commissioner of Police by the appellant against the second respondent alleging commission of cheating and criminal breach of trust, the police made investigation and submitted a `b' report to the court stating that further investigation was not required as the case was of civil nature. The appellant approached the Second Additional Chief Metropolitan Magistrate for quashing the report and for grant of permission to him to prove the commission of offences by the second respondent. The Magistrate, after perusing the investigation records came to the view that a prima facie case was made out against the second respondent and consequently he passed an order for registering a calendar case against him under Sections 408 and 420 IPC and for issuing summons to him under Section 204 Cr. P. C. The second respondent preferred a petitioner under Section 482 Cr. P. C. before the High Court for setting aside the order of the Magistrate on the ground that the Magistrate had not followed the procedure laid down by the Code for taking cognizance of the case and issuing process to the accused after the police had sent a `b' report in the case. The High Court allowed the petition against which order the matter was taken to the Apex Court by way of special leave. A three judge bench of the Hon'ble Apex Court allowing the appeal quashed the order of the High Court and restored that of the Magistrate and it was held that upon receipt of a police report under Section 173 (2) Cr. P. C. , a Magistrate is entitled to take cognizance of an offence under Sections 190 (1) (b) even if the police report was to the effect that no case is made out against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation taking into account the statements of the witnesses examined by the police during the investigation and take cognizance of the case, if he thinks fit, in exercise of his power under Section 190 (1) (b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 Cr. P. C. for taking cognizance of a case under Section 190 (1) (a) though it is open to him to act under Section 200 Cr. P. C. or Section 202 Cr. P. C. also. The fact that in that case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if complaint had been preferred before the Magistrate and the Magistrate had ordered investigation under Section 156 (3) Cr. P. C. , the police would have to submit a report under Section 173 (2) Cr. P. C. ' Therefore, the first and foremost contention of the learned counsel for the petitioner is clearly untenable. It is also obvious from a bare perusal of the impugned order taking cognizance that the learned trial Court has taken into consideration the final report as well as the materials collected during investigation and the grievance made by the learned counsel in this regard is also unacceptable. It is well settled that the criminal proceedings can also be lodged and proceeded with if the allegations and the materials on record disclose prima facie ingredients or offence. Simply because mutation proceedings have been challenged by way of appeal does not debar the complainant from initiation of the criminal proceedings against the accused persons specially when the allegations clearly disclose the alleged offences against the accused persons. The authority referred to by the learned counsel for the petitioner is clearly distinguishable on facts. ;