Rajinder Aggarwal vs State Of Punjab And Ors
2023 Latest Caselaw 1611 P&H

      IN THE HIGH COURT OF PUNJAB AND HARYANA
               AT CHANDIGARH

                          ****

                                          CRM-M-28338 of 2012
                                          Date of Decision: 25.01.2023.

Rajinder Aggarwal                                    .....Petitioner
                                 Vs.
State of Punjab and others                           .....Respondents


CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA

Present:-    Mr. R.S. Cheema, Senior Advocate with
             Mr. K.S. Nalwa, Advocate and Mr. Satish Sharma,
             Advocate for the petitioner.
             Mr. R.S. Khaira, DAG, Punjab.
             Mr. Brijender Kaushik, Advocate for respondents
             No.2 and 3.

                          ****
DEEPAK GUPTA, J.

Petitioner is complainant of FIR No.40 dated 16.05.2022

registered at Police Station Ferozepur Cantt., District Ferozepur under

Sections 384, 388, 192, 211, 148 and 149 IPC and Sections 25 (Act N: 54)

of the Arms Act, 1959. The said FIR was lodged against respondents No.2

and 3. After investigation, Police submitted cancellation report on

05.12.2004 on the direction of Additional Director General of Police

(Crime), Punjab, which was rejected by the learned Chief Judicial

Magistrate, Ferozepur vide order dated 14.01.2006 with the direction to re-

investigate the matter. Police re-submitted cancellation report, which was

again rejected vide order 27.11.2009 (Annexure P.14) by the learned Chief

Judicial Magistrate, Ferozepur by holding that there was a prima-facie case

to prosecute the accused - respondents No.2 and 3 under Section 389 read

with Section 120-B IPC. This order dated 27.11.2009 was challenged in the

revision by the respondents, which has been accepted by the learned

Additional Sessions Judge, Ferozepur vide order dated 21.04.2012

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(Annexure P.15), which is assailed by the petitioner- complainant in this

petition.

2. (i) Genesis of the case is business rivalry between petitioner and

respondent No.3, who are close relatives. They had a joint business for

making bus bodies at Lalru for Swaraj Mazda Limited. They separated their

business vide written settlement deed dated 11.08.1999, whereby

respondent No.3 along with his family members agreed not to seek business

from Swaraj Mazda Limited for a period of 5 years, for which they were

duly compensated by the petitioner.

(ii) However, backtracking from said settlement, respondent No.3

sought business from Swaraj Mazda, constraining petitioner to file Civil

Suit No.28 dated 13.03.2000 at Panchkula Court, in which injunction order

under Order 39 Rules 1 and 2 CPC was granted in his favour, restraining

respondent No.3 from seeking business from Swaraj Mazda for five years.

Said order of the Panchkula Court was upheld upto Hon'ble Supreme Court.

(iii) It is alleged that having failed to get the stay order vacated,

respondent No.3 and his brothers became frustrated and started demanding

₹5 crore from the petitioner for not seeking business from Swaraj Mazda

Company for five years. Petitioner refused. At this, respondent No.3 with

the help of his brothers started adopting illegal tactics. It is alleged that

petitioner started receiving threatening calls of extortion from the anti-social

elements. The caller wanted the petitioner to pay ₹5 crore to respondent

No.3 and his family for not seeking the business from Swaraj Mazda for

five years. Complaint was made by the petitioner to SHO, Police Station,

Sector 3, Chandigarh as well as SHO Police Station City Lalru on

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CRM-M-28338 of 2012

29.09.2001.

(iv) Respondent No.3 then lodged FIR No.556 dated 18.12.2001

under Sections 323, 506, 34 IPC at Police Station Panchkula against the

petitioner and his son alleging that they had assaulted respondent No.3.

After investigation of the case, cancellation report was submitted by the

Police, which was accepted by the Chief Judicial Magistrate, Panchkula. It

is alleged further that respondents No.2 and 3 then hired Pappu Yadav,

underworld don of Bihar to get the issues settled with the petitioner, which

fact was also stated by SSP, Panchkula in a statement made to the Press on

23.01.2002.

(v) It is alleged further that another FIR No.3 dated 21.01.2002

was got registered by respondent No.2, brother of respondent No.3 against

petitioner and his son under Sections 307, 342, 323, 427, 148 and 149 IPC

and under Sections 25 of the Arms Act at Police Station Ferozepur Cantt.

making allegations of kidnapping and firing at respondent No.2. Petitioner

wrote letters to various authorities against his false implication. After

thorough investigation, cancellation report was submitted before learned

Area Magistrate. Learned Chief Judicial Magistrate declined to accept the

cancellation report and ordered for further investigation. Detailed inquiry

was conducted and again cancellation report was submitted, which was

accepted by learned Chief Judicial Magistrate, Ferozepur vide detailed order

dated 09.05.2007. The said order was upheld uptill this High Court.

3. Further case of the petitioner is that during course of

investigation of FIR No.3, he made a complaint to the Ferozepur Police by

narrating that how he and his son had been falsely implicated in the above-

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CRM-M-28338 of 2012

referred cases and in fact, respondent No.3 and his brothers wanted to extort

₹5 crore for not seeking business from Swaraj Mazda for five years and as

he (petitioner) had refused to fulfill this demand, he had started receiving

threatening calls and then respondent No.3 had got lodged FIR No.556

dated 18.12.2001 under Sections 323, 506, 34 IPC at Police Station

Panchkula and FIR No.3 dated 21.01.2002 under Sections 307, 342, 323,

427, 148 and 149 IPC and under Sections 25 of the Arms Act at Police

Station Ferozepur Cantt. On the basis of this complaint of the petitioner,

FIR No.40 dated 16.05.2002 was registered at Police Station Ferozepur

Cantt., against respondents No.2 and 3 with the allegations that the

petitioner had been put in fear of false accusation by said respondents No.2,

3 and others in order to commit extortion of ₹5 crore.

4. Instead of investigating the allegations contained in this FIR

No.40, the Police simply prepared the cancellation report on the basis of a

letter dated 22.09.2004 of ADGP, Crime, Punjab stating therein that

allegations were false and even if taken to be true, the same disclosed

offences under Sections 182 and 211 IPC only. The cancellation report was

rejected by learned Chief Judicial Magistrate, Ferozepur on 14.01.2006.

Cancellation report was re-submitted in the Court which was again rejected

by learned Chief Judicial Magistrate, Ferozepur vide order dated

27.11.2009. However, the revision filed against that order has been

accepted by learned Additional Sessions Judge, Ferozepur by way of the

impugned order dated 21.04.2012, remanding the case with the direction to

pass fresh order on the ground that registration of the FIR No.40 would

amount to double jeopardy.

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5. It is contended by Ld. Counsel for the petitioner that learned

Additional Sessions Judge failed to appreciate that the allegations in FIR

No.3 and FIR No.40 are totally different. In the present case, it was

categorically alleged that petitioner had been put in fear of false accusation

by respondents No.2 and 3 and their associates in order to commit extortion

of ₹5 crore; that learned Additional Sessions Judge had found sufficient

evidence regarding commission of the said offence and so, there was no

justification to set aside the order of the Chief Judicial Magistrate. While

remanding the case back for consideration, learned Additional Sessions

Judge has given a finding on facts, leaving no scope to give an independent

finding by the Chief Judicial Magistrate. Two FIRs are not connected with

each other and so, the observation of the learned Additional Sessions Judge

that as proceedings under Section 182 IPC have been initiated against

respondent No.2 on account of the fact that the allegations in FIR No.3

dated 21.01.2002 had been found completely false and baseless, so it will

amount to double jeopardy is not correct because the allegations of two

FIRs are not connected. Learned Additional Sessions Judge brushed aside

the basic material fact that respondent No.3 was the main architect of the

entire extortion, who falsely implicated the petitioner and his son in bogus

FIR No.556 at Panchkula and then got registered FIR no.3 at Ferozepur

Cantt.

6. Respondents defended the impugned order.

7. I have considered submissions of both the sides at considerable

length.

8. After concluding the investigation in case FIR No.40 dated

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CRM-M-28338 of 2012

16.05.2002 at Police Station Cantt. Ferozepur, cancellation report was

submitted by the Police, which was rejected by the Chief Judicial

Magistrate, on the direction of ADGP, Crime. Re-submission of the

cancellation report met the same fate, as Chief Judicial Magistrate again

rejected the same and ordered for summoning of respondents No.2 and 3 to

face prosecution under Section 389 and 120-B IPC. The question is

whether the order passed by the learned Chief Judicial Magistrate dated

27.11.2009 was illegal or perverse in any manner whatsoever.

9. In order to examine this issue, it is required to be seen as to

what options were there before learned Chief Judicial Magistrate while

considering the cancellation report submitted by the Police. It is the

consistent position of law that when a report under Section 173 Cr.P.C

comes up for consideration before the Magistrate, there may be two

situations, one is that report may conclude that offence appears to have been

committed by a particular person or persons; and the other is that no offence

appears to have been committed. In the first situation, the Magistrate has

three options:- (a) he may accept the report and take cognizance of the

offence and issue process; (b) he may disagree with the report and drop the

proceedings; and (c) he may direct further investigation under Section

156(3) Cr.P.C and require the Police to make a further report. In the second

situation, when the Police report says that no offence appears to have been

committed, Magistrate has again three courses open to him:- (a) he may

accept the report and drop the proceedings; (b) he may disagree with the

report and take the view that there is sufficient ground for proceeding

further and take cognizance of the offence and issue the process (which

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CRM-M-28338 of 2012

course has been adopted by the Chief Judicial Magistrate in this case while

rejecting the second cancellation report); and (c) he may direct further

investigation to be made by the Police under Section 156(3) Cr.P.C.

Reliance in this regard can be placed upon Bhagwant Singh Vs.

Commissioner of Police and another, (1985) SCC 537, H.S. Bains,

Director, Small Saving-cum-Deputy Secretary Finance, Punjab,

Chandigarh Vs. State (UT, Chandigarh) (1980) 4 SCC 631 and M/s India

Carat Pvt. Ltd., Vs. State of Karnataka & Another, (1989) 2 SCC 132.

10. In this case, Police submitted report in respect of FIR No.40

dated 16.05.2002 that no offence appears to have been committed. Ld.

Chief Judicial Magistrate, adopted the second course, i.e. rejected the report

and took cognizance. It may be noted here itself that while rejecting the

cancellation report and taking cognizance, learned Chief Judicial

Magistrate, gave detailed reasons in his order dated 27.11.2009 (Annexure

P.14), though it was not even necessary for him to do so. It has been

observed by Hon'ble Supreme Court in Nupur Talwar Vs. Central Bureau

of Investigation Delhi and Another, (2012) 2 SCC 188, by referring to

Kanti Bhadra Shah and another Vs. State of West Bengal, 2000(1) SCC

722 that though at the time of passing an order of discharge in favour of

accused, reasons are to be recorded but it is not so mandated at the time of

framing charges against the accused.

11. Having adopted the course of taking cognizance by rejecting

the cancellation report, learned Chief Judicial Magistrate acted within his

jurisdiction. The said order could have been interfered with by the

Revisional Court only if it was found to be perverse or passed on no

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CRM-M-28338 of 2012

material. Reliance in this regard can be again placed upon Nupur Talwar's

case (supra), wherein it was held by Hon'ble Supreme Court as under:-

"15. Now the question is: what should be the extent of judicial

interference by this Court in connection with an order of taking

cognizance by a Magistrate while exercising his jurisdiction

under Section 190 of the Code?

16. Section 190 of the Code lays down the conditions which are

requisite for the initiation of a criminal proceeding. At this

stage the Magistrate is required to exercise sound judicial

discretion and apply his mind to the facts and materials before

him. In doing so, the Magistrate is not bound by the opinion of

the investigating officer and he is competent to exercise his

discretion irrespective of the views expressed by the police in its

report and may prima facie find out whether an offence has

been made out or not.

17. The taking of cognizance means the point in time when a court

or a Magistrate takes judicial notice of an offence with a view to

initiating proceedings in respect of such offence which appears

to have been committed. At the stage of taking of cognizance of

offence, the court has only to see whether prima facie there are

reasons for issuing the process and whether the ingredients of

the offence are there on record.

18. xxxxxxx

19. The correctness of the order whereby cognizance of the offence

has been taken by the Magistrate, unless it is perverse or based

on no material, should be sparingly interfered with. In the

instant case, anyone reading the order of the Magistrate taking

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CRM-M-28338 of 2012

cognizance, will come to the conclusion that there has been

due application of mind by the Magistrate and it is a well-

reasoned order. The order of the High Court passed on a

criminal revision under sections 397 and 401 of the code (not

under Section 482) at the instance of Dr. Mrs Nupur Talwar

would also show that there has been a proper application of

mind and a detailed speaking order has been passed."

12. In the present case, the order of Chief Judicial Magistrate is

found to be neither perverse nor illegal in any manner. Though, he was not

mandated to give reasons for rejecting the cancellation report and for taking

cognizance, as only prima-facie case was to be seen at this stage, still

learned Chief Judicial Magistrate have given reasons for taking the

cognizance. In no way, the said order could be said to be illegal or perverse

in any manner.

13. Apart from above, perusal of the impugned order dated

21.04.2012 passed by learned Additional Sessions Judge, Ferozepur,

accepting the revision against rejection of the cancellation report by the

Chief Judicial Magistrate, would reveal that revision has been accepted, as

learned Additional Sessions Judge was of the view that registration of FIR

No.40 dated 16.05.2002 for getting FIR No.3 dated 21.01.2002 registered

on false grounds would amount to double jeopardy of respondents No.2 and

3, as case under Section 182 IPC had already been registered.

14. In Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and

another, (2012) 7 SCC 621, Hon'ble Supreme Court considered the scope

and application of doctrine of double jeopardy. After referring to Section

300 Cr.P.C and the various precedents, Hon'ble Supreme Court held as

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CRM-M-28338 of 2012

under:-

"33. In view of the above, the law is well settled that in order to

attract the provisions of Article 20(2) of the Constitution i.e.

doctrine of autrefois acquit or Section 300 CrPC or Section

71 IPC or Section 26 of the General Clauses Act, the

ingredients of the offences in the earlier case as well as in

the latter case must be the same and not different. The test to

ascertain whether the two offences are the same is not the

identity of the allegations but the identity of the ingredients

of the offence. Motive for committing the offence cannot be

termed as the ingredients of offences to determine the issue.

The plea of autrefois acquit is not proved unless it is shown

that the judgment of acquittal in the previous charge

necessarily involves an acquittal of the latter charge.

XX XX XX XX

39. There may be some overlapping of facts in both the cases but

the ingredients of the offences are entirely different. Thus, the

subsequent case is not barred by any of the aforesaid statutory

provisions."

15. In the present case, FIR No.3 was registered at the instance of

respondent No.2 against petitioner and his son, alleging attack and firing on

him, which allegations were found to be false and the cancellation report

filed by the Police was upheld upto this High Court. Kalendra under

Section 182 IPC was filed. Respondents have placed on record copy of

order dated 26.02.2019 passed in CRM-A-569-MA-2013 (O&M), which

reveals that acquittal recorded by learned Chief Judicial Magistrate in

Kalendra was upheld by this Court.

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CRM-M-28338 of 2012

16. However, the allegations of FIR No.40 dated 16.05.2002,

lodged on the complaint of the petitioner are different. Allegations therein

are that having failed to get the stay order vacated, which was upheld upto

Hon'ble Supreme Court, respondent No.3 along with his brothers wanted to

extort ₹5 crore from the petitioner for not getting business from Swaraj

Mazda for five years and in order to fulfill his threats, had initially lodged

FIR No.556 dated 18.12.2001 and then FIR No.3 dated 21.01.2002 against

petitioner and his son. Thus, allegations are different.

17. As observed by Hon'ble Supreme Court in Sangeetaben

Mahendrabhai Patel's case (supra), test to ascertain as to whether two

offences are same, is not the identity of allegations but the identity of the

ingredients of the offence. Though some facts are overlapping in two cases,

but the ingredients of the two offences, i.e. one under Section 182 IPC on

the basis of finding the facts of FIR No.3 to be false and that of FIR No.40

are entirely different.

18. Based on above discussion, it is held that impugned order dated

21.04.2012 passed by learned Additional Sessions Judge, Ferozepur cannot

be sustained. Said order is set aside. Order dated 27.11.2009 (Annexure

P.14) of learned Chief Judicial Magistrate, Ferozepur is restored. Petition is

allowed accordingly.

January 25, 2023                       ( DEEPAK GUPTA )
renu                                             JUDGE

             Whether Speaking/reasoned           Yes/No
             Whether Reportable                  Yes/No




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