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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
NARENDRA KUMAR VYAS, J.
Sanjay Bhivgade, S/o Late Vivekanand Bhivgade – Appellant
Versus
State of Chhattisgarh – Respondent
CRMP No. 385 of 2021
Decided on : 30-11-2021
Criminal Procedure Code, 1973 - Section 156 (3) and 482 - Land Revenue Code - Sections 32 and 44 (2) - Order of mutation - Police officer's power to investigate cognizable case - Property dispute - Genuineness of will - Whether Magistrate having fixed matter for recording evidence of complainant's witnesses will amount to taking of cognizance complaint by Magistrate - Whether Magistrate having fixed matter for recording evidence of complainant's witnesses to examine as to whether process needs to be issued to other party or not can he later on, invoke powers under Section 156 (3) of Cr.P.C. and chooses different nature of enquiry/ investigation - Sub Divisional Officer allowed appeal preferred by petitioners under Section 44 of Land Revenue Code and set aside order of Tahsildar - Civil Suit was dismissed suit and decreed the counter claim of defendant No. 3 & 4 holding will as genuine document, since then, petitioners are in possession of property - Second appeal preferred by complainant under Section 44 (2) of Land Revenue Code was allowed and order passed by Sub-Divisional Officer was set aside by Commissioner - Revision preferred by petitioners against order of Commissioner has been allowed and order of Commissioner has been set aside - Writ Petition filed by complainant is pending before this Court for consideration.
Finding of the court: It is now well settled that if a complaint is being filed before the Magistrate, he applies his mind for proceeding under various provisions of Chapter 16 of the Code of Criminal Procedure, then only it must be held to have taken cognizance of the offences mentioned in the complaint. When however, Magistrate applies his mind not for such purpose but for purposes of ordering investigation under Section 156(3) or issue a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. From bare perusal of order-sheets, it is crystal clear that neither summons have not been issued to the accused by the learned Judicial Magistrate First Class nor the complaint has been dismissed, as such, it cannot be held that cognizance has been taken by learned Judicial Magistrate First Class - It is clear that taking cognizance of an offence by Court is different from filing of complaint by complainant. Taking cognizance would mean the action has been taken by Court for initiating judicial proceedings against offender in respect of offence regarding which complaint is filed - Merely filing of complaint does not amount to cognizance of complaint unless Judicial Magistrate First Class applies his mind, therefore, the learned Judicial Magistrate First Class, has not committed any illegality or irregularity in directing for registration of FIR against petitioners, which warrants any interference by this Court at this stage.
Result: Petition dismissed
ORDER :
1. The petitioners have filed this petition under Section 482 of the Cr.P.C. against the order dated 02.03.2021 (Annexure P/1) passed by Judicial Magistrate First Class, Bilaspur, District-Bilaspur (C.G.) in Criminal Complaint Case No. unregistered/2020 whereby the application filed by respondent No. 2-Meenakshi Banjari under Section 156 (3) of the Cr.P.C. has been allowed directing Police Station-Civil Lines, Bilaspur to register FIR against the petitioners and to submit final report.
2. The brief facts as projected by the petitioners, are that there is a dispute with respect to the property bearing Khasra No. 635/3 & 638/59 area admeasuring 0.25 & 0.95 total 1.20 acres situated at Juna Bilaspur, District-Bilaspur going on between the petitioners and respondent No. 2. Even the civil suit was also filed and in that said civil suit, the counter claim filed by the petitioners was decreed vide judgment and decree dated 25.02.2012 and the Civil Court has recorded categorical finding that will executed by Satyabhama dated 31.01.2001 is a valid document and the petitioners have proved the genuineness of the said will.
3. Learned counsel for the petitioners would submit that in pursuance of the will dated 31.01.2001 executed in favour of the petitioners, names of the petitioners were recorded on 02.01.2003. On 07.03.2009, application filed by the complainant under Section 32 of the Land Revenue Code before Tahsildar, Bilaspur was allowed and the order of mutation passed in favour of the petitioners has been set aside. On 06.08.2009, one Sangh Mitra and three others filed Civil Suit bearing No. 3A/2011 challenging the will executed by Sangh Mitra, the complainant-Meenakshi Banjari was defendant No. 1 and petitioners were impleaded as defendants No. 3 & 4. The petitioners also filed the counter claim, claiming the title over the property in question on the basis of will. On 10.03.2010, Sub Divisional Officer allowed the appeal preferred by the petitioners under Section 44 of the Land Revenue Code and set aside the order of Tahsildar. On 25.02.2012, Civil Suit No. 3A/2011 was dismissed the suit and decreed the counter claim of defendant No. 3 & 4 holding the will dated 31.01.2001 as genuine document, since then, the petitioners are in possession of the property. On 26.02.2013, the second appeal preferred by the complainant under Section 44 (2) of the Land Revenue Code was allowed and the order passed by the Sub-Divisional Officer was set aside by the Commissioner. On 29.03.2017, the revision preferred by the petitioners against order of Commissioner has been allowed and the order of Commissioner has been set aside. On 20.03.2018, Writ Petition (C) No. 963/2018 filed by the complainant is pending before this Court for consideration.
4. Thereafter, on 30.04.2018, respondent No. 2 filed a complaint (Annexure P/2) before Judicial Magistrate First Class, Bilaspur, which reads as under:-
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