C482/658/2005 of GOPAL SINGH MEHRA and ANR. Vs STATE and ANR.

Criminal Misc. Application No. 854/2007

Balwant Singh Mehra

…….Petitioner

Versus

State of Uttarakhand & Ors.

…….Respondents

Mr. Sudhir Singh, Advocate for the petitioner.

Mr. Amit Bhatt, Addl. GA for the State.

Mr. RS Sammal, Advocate for the respondents no. 2 & 3.

With

Criminal Misc. Application No. 658/2005

Gopal Singh Mehra & Anr.Versus

…….Petitioners

State of Uttarakhand & Anr.

…….Respondents

Mr. RS Sammal, Advocate for the petitioners.Mr. Amit Bhatt, Addl. GA for the State. Mr. Sudhir Singh, Advocate for the respondent no. 2.

July 8, 2010

Hon’ble Dharam Veer, J.

Since both these petitions are arising out of the same facts involving common dispute, hence they are being disposed of by this common judgment and order.

Heard learned Counsel for the parties and perused the record.

In brief, the facts of the case are that Balwant Singh Mehra (petitioner in C-482 No. 854/2007) moved an application under Section 156 (3) CrPC against Gopal Singh Mehra and Ram Singh Bashera (petitioners in C-482 No. 658/2005) and on the basis of the application under Section 156(3) CrPC, the Magistrate passed an order to register the FIR. On the basis of the order of the Magistrate, FIR was registered in PS Haldwani as Case Crime No. 2746/2002 under Section 324/504/506/392 IPC on 27.9.2002. After the investigation, the I.O. has filed final report on 3.3.2003 and it was recommended by the I.O. that the proceedings under Section 182 IPC be initiated against the complainant Balwant Singh Mehra. On the basis of this report, ACJM, Haldwani has passed an order on 13.11.2003 and taken

cognizance on the basis of the chargesheet submitted by the I.O. under Section 182 IPC against Balwant Singh Mehra. Thereafter Judicial Magistrate, Haldwani has passed an order on 25.4.2005 and observed that before taking any decision on the final report, the complainant is required to be heard and it was also observed that further proceedings under Section 182 IPC may be continued after the decision on the protest petition of the complainant against the final report. Thereafter the Judicial Magistrate, Haldwani has also passed an order on 19.9.2005 after recording the statements under Section 200 and 202 CrPC to summon the accused Gopal Singh Mehra and Ram Singh Bashera under Section 323, 504 and 506 IPC and quashed the proceedings under Section 182 IPC against Balwant Singh Mehra. Against the aforesaid order dated 19.9.2005, Gopal Singh Mehra and Ram Singh Bashera has filed the present Criminal Misc. Application no. 658/2005 with the prayer to quash the said order of the Judicial Magistrate, Haldwani dated 19.9.2005.

State had also filed revision against the aforesaid order dated 19.9.2005, which was allowed by the Additional Sessions Judge, Haldwani vide order dated 25.10.2007 and the matter was remanded to trial court to hear the case under Section 182 IPC as per the directions given in the body of the judgment.

Mr. RS Sammal, learned Counsel for the petitioners (in C482 No. 658/2005) has argued that Judicial Magistrate cannot review his order as he had taken the cognizance against the complainant Balwant Singh Mehra by the order dated 13.11.2003. Contrary to it, Mr. Sudhir Singh, learned Counsel for the complainant Balwant Singh Mehra (petitioner in C482 No. 854/2007) argued that as per the law laid down by the Hon’ble Apex Court, before taking any decision on the final report, the complainant is required to be given the notice.

From the perusal of the aforesaid order dated 13.11.2003, it reveals that the said order was passed without giving any notice to the complainant Balwant Singh Mehra for hearing on the final report and no opportunity was given to him to file any protest petition against the final report. As both the matters are

co-related to each other and the I.O. had found that FIR was not on the correct facts and recommended proceedings under Section 182 IPC against the complainant Balwant Singh Mehra, hence before taking the cognizance against him, notice to the complainant was required. As the notice was not given to the complainant before passing the said order, hence the said order of the trial court is not correct and justified.

Reliance has been placed on the judgments of the Hon’ble Apex Court reported in 1985 SCC (Cri) 267,Bhagwant Singh v. Commissioner of Police & Anr. and (1997) 7 SCC 614, Union Public Service Commission v. S. Papaiah & Others.

For the reasons recorded above and in view of the law laid down by the Hon’ble Apex Court in the aforesaid verdicts, the orders of the court below dated 13.11.2003 passed by the ACJM, Haldwani, 19.9.2005 passed by the Judicial Magistrate, Haldwani and 25.10.2007 passed by the Additional Sessions Judge, Haldwani are hereby quashed and set aside.

The parties are directed to appear before the trial court on 19.7.2010. The trial court will pass an order after hearing both the parties afresh and after giving an opportunity to the complainant Balwant Singh Mehra to file objections against the final report given by the I.O.

Both these petitions are disposed of accordingly.

Interim orders dated 17.11.2007 and 29.9.2005 stand vacated.

PRABODH