GOPAL KRISHNA SHARMA, J. - (1.) THIS criminal miscellaneous petition under Section 482, Cr. PC is directed against the order of the Judicial Magistrate Dataramgarh, dated 9th Dec, 1983, by which, he passed order to take cognizance against the petitioners under Sections 198 and 120B, I.P.C.
(2.) TO understand the controversy it is necessary to mention here certain facts of the case. Non -petitioner No. 2 Fateh Mohammed and others filed a civil suit against the petitioners in the court of Munsif, Dataramgarh. One of the plaintiffs Gulam Hussain expired so, an application was moved for bringing on record his legal representatives. That application was contested by the defendant non -petitioners who raised an objection about filing of the application beyond limitation. In the civil suit, the defendants submitted a certificates of 2 doctors showing that Gulam Hussain died on particular date. The learned Munsif found that the certificates issued by the doctors were false ones, and that the petitioners had issued the certificates knowing it to be false ones. The learned Munsif passed order taking cognizance against the two doctors for issuing false certificates, and took cognizance under Section 197 I.P.C. Against that order, while the application for bringing on record the legal representatives of Gulam Hussain, was being considered in the lower court, the petitioners came in revision to this Court which was registered as S.B. Civil Revision No. 798/83. The said revision petition was decided by this Court on 17th Sept., 1985 and there in, it was observed as under: As far as the order pertaining to taking cognizance under Section 197 I.P.C., against the doctors is concerned, it appears to be quite unnecessary as failure to keep some record about the certificates issued by the doctors in the hospital itself would not be a matter on which prosecution should be started against them. While setting aside the order of the Magistrate as regards taking cognizance under Section 197 I.P.C. against the two doctors, the revision petition is dismissed. While referring to the above order of this Court in revision, it is clear that the order taking cognizance under Section 197, I.P.C. by the learned Magistrate was set aside. So there was no prosecution of the doctors under Section 197 I.P.C. for offence of issuing false certificates. On 9th Dec., 1983, Fateh Mohammed non -petitioner No. 2 moved an application under Section 190, Cr. P.C. requesting the Magistrate to take cognizance against the petitioners under Sections 198 and 120B, I.P.C. On this application, Magistrate passed order on the same date for taking cognizance against the petitioners. Against that order, they have filed this petition Under Section 482 Cr. P.C. Heard the learned Counsel for the parties. I have also considered the facts which gave cause for taking cognizance against the petitioners. The details mentioned above are sufficient to say that the order of taking cognizance, is an incorrect order. The question of taking cognizance arose on the basis of the certificates issued by the two doctors. It was stated before the learned Magistrate that the doctors have issued false certificates, and those certificates knowing them to be false, were used by the petitioners. The learned Magistrate ordered the two doctors to be prosecuted for offence under Section 197, I.P.C. for issuing false certificates and he took cognizance against them, but the order of taking cognizance was set aside by this Court on 17th Sept., 1985. Now, the second part of the order is about taking cognizance against the petitioners under Section 198 and 120B, I.P.C. for using those certificates knowing them to be false ones. When the doctors were not prosecuted for issuing false certificates, and the order of taking Cognizance against the doctors was set aside by this Court, means that it was not accepted that the doctors had issued false certificates. When no false certificate was treated to have been issued by the doctors, then, there was no question of using false certificates be the petitioners.
(3.) UNDER Such circumstances, the order taking cognizance against the petitioners, is certainly an abuse of the process of law, as no cognizance could be taken in such circumstances.;