- (1.) THE instant petition under Section 482 Cr. P. C. is directed against the order dated 5. 12. 2005 passed by the learned Addl. District and Sessions Judge, Kota in Criminal Revision No. 243/2005 whereby the revision has been dismissed and the order dated 22. 10. 2005 of the learned Judicial Magistrate, Itawa in Criminal Case No. 356/2005 taking cognizance against the petitioners for the offence under Section 498-A IPC and summoning them through non-bailable warrant has been upheld.
(2.) THE brief facts of the case are that the complainant non- petitioner No. 2 Radha Bai filed a complaint before the learned Judicial Magistrate, Itawa on 15. 6. 2004 which was forwarded to the police under Section 156 (3) Cr. P. C. for investigation. During the course of investigation, both the parties entered into a compromise and filed a joint application before the investigating officer on the basis of which the negative final report was filed before the Court on 15. 10. 2004. THE final report was accepted by the learned Magistrate on 12. 4. 2005. However, a protest petition was filed by the complainant non-petitioner No. 2 before the learned Magistrate on 22. 10. 2005 whereupon the order taking cognizance for the offence under Section 498-A IPC and summoning the petitioners through non-bailable warrants was passed. THE petitioners preferred a revision petition before the learned District & Sessions Judge, Kota against the said order which was disallowed as indicated above. Hence, this petition. Learned counsel for the petitioners has contended that the order dated 22. 10. 2005 of the Judicial Magistrate, Itawa taking cognizance as well as the order dated 5. 12. 2005 of the learned District & Sessions Judge, Kota disallowing the criminal revision petition are bad in law being against the materials and evidence on record which deserve to be quashed and set aside. The learned Magistrate could not have reviewed its own order dated 12. 4. 2005 and accepted the final report. The learned Magistrate could not have taken cognizance on the basis of the protest petition after having accepted he final report. The learned Court below has wrongly mentioned in the order that the offence under Section 498-A IPC is not compoundable whereas the Hon'ble Apex Court has held in matrimonial matters that if genuine settlement has been arrived at between the parties, the bar on compounding of offences under Section 320 Cr. P. C. shall not come in the way. Learned counsel for the non-petitioner as well as learned Public Prosecutor has both tried to support the impugned order dated 22. 10. 2005 whereby cognizance has been taken against the petitioners for the offence under Section 498-A IPC. They have pointed out that the final report was accepted without giving notice to the complainant and, therefore, the order accepting final report was nonest. The learned court below having already passed an order restoring the final report on this ground, has not reviewed its order, but has only rectified the factual mistake that came to be committed in this case. Thereafter, the composite order disallowing the final report and taking cognizance for the offence under Section 498-A IPC against the petitioner has been passed. They have also submitted that the present petition tantamounts to second revision which is barred under Section 397 (3) Cr. P. C. I have considered the rival submissions made at the bar and have also gone through the order of the trial Court as well as that of the revisional court and the relevant documents. It is well settled as held in M/s. India Carat Pvt. Ltd. vs. State of Karnataka & Anr. ( (1989) 2 SCC 132) that the Magistrate is entitled to take cognizance of the offence under Section 190 (1) (b) Cr. P. C. even if the police report is 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 its mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190 (1) (b) Cr. P. C. and direct the issue of the 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 the case under Section 190 (1) (a) Cr. P. C. , though it is also open to him to act under Section 200 or 202 Cr. P. C.
(3.) LEARNED counsel for the petitioner has referred to the case of Maj. Genl. A. S. Gauraya & Anr. vs. S. N. Thakur & Anr. (AIR 1986 SC 1440), Bindeshwari Prasad Singh vs. Kali Singh (AIR 1977 SC 2432), Vinod Baid vs. State of Rajasthan & Anr. (2002 (2) RLR 56), H. S. Bains vs. The State (Union Territory of Chandigarh) (AIR 1980 SC 1883) and State of Kerala vs. M. M. Manikantan Nair (2001 (3) Supreme 526 ). But in none of these cases, the controversy in the present petition has been dealt with or decided. In none of these cases final report was accepted and the said order was recalled because no notice as was required to be given to the complainant was given to him. Therefore, these authorities to do not help the petitioner. Learned counsel for the complainant non-petitioner No. 2 has relied upon Goyal Vijay Verma vs. Bhuneshwar Prasad Sinha & Ors. (1983 SCC (Cri) 110) wherein it has been held that the Magistrate is not debarred from taking cognizance on a complaint merely on the ground that he had earlier declined to take cognizance on police report. In Union Public Service Commission vs. S. Papaiah & Ors. (IV ( (1997) CCR 17 (SC)) wherein it has been held that admittedly no notice was issued by the Vth Metropolitan Magistrate to the appellant before accepting the final report submitted by the CBI and deciding not to take cognizance and drop the proceedings. This omission vitiates the order of the learned court accepting the final report. It was held that the issue is no longer res- integra. A three Judge Bench of the Apex Court in the case of Bhagwant Singh vs. Commissioner of Police & Anr. ( (1985) 2 SCC 537) has held that the Magistrate can adopt one of the three courses; i. e. (1) he may accept the report and drop the proceedings, or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process, or (3) he may be direct further investigation to be made by the police under sub-section (3) of Section 156. Where he adopts first course, he must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. ;