State of Rajasthan Vs. Aruna Devi and ors. - Court Judgment

Excerpt:
criminal - cognizance of offence - sections 173 (2) and 173 (8) of criminal procedure code, 1973 - appeal filed challenging order of high court under which order of cognizance of offence made by magistrate set aside on grounds that taking cognizance pursuant to filing of further report amounted to entertaining second complaint not permissible in law - section 173 (8) permits further investigation in respect of offence after report submitted under section 173 (2) - section 173 (8) visualises forwarding of another report to magistrate - further investigation has legal sanction and after investigation report submitted that offence was committed it would be open to magistrate to take cognizance of same - held, cognizance of offence can be made by magistrate. - motor vehicles act (59 of 1988)sections 140, 166, 147 & 149 :[s.b. sinha & p. sathasivam, jj] liability of insurer - in the present case, a jeep colliding with a truck truck involved in accident was not insured -tribunal recording that driver of jeep was not negligent in driving jeep and not contributing to accident - high court fastened the liability on insurer of jeep - held, only because truck was not insured, appellant could not be made liable to pay compensation where liability being incurred by driver and owner of truck and not by driver and owner of jeep. section 147: [s.b. sinha & p. sathasivam, jj] liability of insurer held, gratuitous passengers are not covered. even otherwise, the deceased being a gratuitous passenger in the jeep, the appellant insurer of the jeep cannot be held liable to pay compensation to the claimants. section 173: [s.b. sinha & p. sathasivam, jj] interference in findings of facts held, the question as to whether the driver of the jeep or the truck and/or both of them were responsible for negligence in driving their respective vehicles, which let to the said accident is essentially a question of fact. the tribunal has categorically recorded a finding that the driver of the jeep was not driving his jeep rashly and negligently and he was not at fault and that the accident occurred due to rash and negligent driving of the truck by its driver. while reversing the said finding of fact, so as to fasten the liability on the insurance company, the high court was required to assign sufficient and cogent reasons. no such finding to the effect that both driver as also the jeep contributed to the negligence having been recorded by the high court, the question of fastening the joint liability by the insurance company did not arise. only because the truck was not insured, the same by itself did not mean that the appellant insurance company can be held liable to reimburse the claim to the claimants wherefor liability had been incurred by the owner and driver of the truck and, therefore, no liability has been incurred by the driver and owner of the jeep concerned. - further investigation had thus legal sanction and if after such further investigation a report is submitted that an offence was committed, it would be open to the magistrate to take cognizance of the same on his being satisfied in this regard. but the same could be done only in exceptional circumstances some of which have been illustrated in the judgment. in the present case, this is precisely what had happened, as on further investigation being made, fresh materials came to light which led to the filing of further report stating that a case had been made out.b.l. hansaria, j.1. special leave granted.2. a complaint was filed in the court of munsif and judicial magistrate, first class, bilara, against the respondents under various sections of the penal code. the gravamen of the allegation was that the respondents had, in pursuance of a conspiracy, transferred some land on the strength of a special power of attorney bearing forged signature. the magistrate, after perusal of the complaint, directed an investigation to be made as contemplated by section 156(3) to the cr pc, 1973 (the code). a case was registered thereafter by police and a final report was submitted on 18.7.81 stating that complaint was false. the report came to be accepted by the magistrate on 23.9.81. it, however, so happened that the superintendent of police had independently ordered further investigation on 24.9.81 and a challan came to be filed by police against the respondents, inter alia, under sections 420 and 467 ipc. the magistrate took cognizance on 25.6.84. a challenge was made to this act of the magistrate before sessions judge, jodhpur, who dismissed the revision. on further approach to the high court, the revision was allowed and the order of cognizance was set aside. the state has come in appeal under article 136 of the constitution.3. a perusal of the impugned judgment of the high court shows that it took the view that the magistrate had no jurisdiction to take cognizance after the final report submitted by police had been once accepted. shri gupta, appearing for the appellant, contends that this view is erroneous in law inasmuch as section 173(8) of the code permit further investigation in respect of an offence after a report under sub-section (2) has been submitted. sub-section (8) also visualises forwarding of another report to the magistrate. further investigation had thus legal sanction and if after such further investigation a report is submitted that an offence was committed, it would be open to the magistrate to take cognizance of the same on his being satisfied in this regard.4. shri francis for the respondents, however, contends that the order of the magistrate taking cognizance pursuant to filing of further report amounted to entertaining second complaint which is not permissible in law. to substantiate the legal submission, we have been first referred to pramathanath v. saroj ranjan 1962 su 2 scr 297, in which a three-judge bench of this court dealt with this aspect. a perusal of the judgment of the majority shows that it took the view that dismissal of a complaint under section 203 of the code is no bar to the entertainment of a second complaint on the same facts; but the same could be done only in exceptional circumstances some of which have been illustrated in the judgment. further observation in this regard is that a fresh complaint can be entertained, inter alia, when fresh evidence comes forward. in the present case, this is precisely what had happened, as on further investigation being made, fresh materials came to light which led to the filing of further report stating that a case had been made out.5. the case of bindeshwari prasad v. kali singh : 1978 crilj187 , to which also has been referred by shri francis, has not really dealt with the point under consideration, as the legal question examined therein was whether a magistrate possesses inherent powers to review or recall any order passed by him. of course, the order recalled in that case was also one of dismissing of complaint under section 203 on the ground of complainant being absent which showed that he had no interest in the matter.6. the aforesaid being the position in law, we are of the view that the high court erred in quashing the cognizance taken by the learned magistrate. the appeal is, therefore, allowed by setting aside the impugned judgment. it would, however, be open to the respondents, on the matter being, further taken up by the magistrate, to urge that no case against them has been made out, whereupon such order shall be passed by the magistrate as deemed legal and just.