(1.) Being aggrieved by the non-regislration of the complaint under Section 156(3) of the Criminal Procedure Code for offence under Sections 294, 342, 506-II, 120-B, 452, 323, 307, 395, 365, 386, 387 of the India Penal Code as also under Section 25/27 of the Arms Act by the respondents in spite of orders passed by the Chief Judicial Magistrate, Katni. Petitioner Ram Bihari Gautam has filed the present petition.

(2.) From the narration of the brief facts, it appears that there has been inter-rivalry between two factions the petitioner and one Vikas Gupta regarding the filling of tender forms for construction of the trauma unit of a hospital. That the rivalry has also led to filing of report before the police prior to the incident mentioned in the petition. The incident under reference was when the petitioner was allegedly assaulted by Vikas Gupta alongwith the one Raju Yadav and Ors.. The First Information Report lodged by the petitioner Rambihari Gautam did not bear fruit and no action was taken due to the alleged political interference and influence of the accused persons.

(3.) In the present petition, the petitioner filed complaint under Section 190 of the Criminal Procedure Code for offence under Sections 294, 342 etc. (mentioned above). The Chief Judicial Magistrate, Katni by order dated 9-6-2005 directed the Station House Officer, Police Station Katni to register the complaint under Section 156(3) of the Criminal Procedure Code and investigate the same (Annexure P-3). That despite the order, the respondents have failed to register the First Information Report or the final report under Section 173 of the Criminal Procedure Code. The respondents are deliberately dillydallying the filing and registering of the complaint hence the present petition.

(4.) Counsel for petitioner relying on Suresh Chand Jain v. State of M.P. and Anr. (2001) 2 SCC 628 [LQ/SC/2001/93] stated that once the First Information Report was lodged, the police was duty bound to have registered the same and investigated the matter. The Apex Court has also held that under Section 156(3) of the Criminal Procedure Code, a Judicial Magistrate has the power to pass orders before taking cognizance and refer to the police to register the offence and then investigate the same.

(5.) Counsel for petitioner also relied on number of other authorities Geeta Gujar (Smt.) v. State of M.P. 2004 (II) MPWN 132, Suresh ChandJain v. State of M.P. and Anr. (supra), Mohindro v. State of Punjab and Ors. 2001 AIR SCW 2000, Giridhari Lal Kanak v. State of M.P. and Ors. 2002(1) MPLJ 596 and finally relying on Upkar Singh v. Ved Prakash and Ors. AIR 2004 SCW 4320 and contended that whereby the same principle has laid down by the Apex Court that when there was a refusal to register the counter complaint by police, the Magistrate could direct the police at any stage to register the said complaint and investigate the same and it was not hit by Section 162 of the Criminal Procedure Code AIR 2004 SCW 4320:

If concerned police refused to register a counter complaint, it is open to the Magistrate at any stage to direct the police to register the complaint brought to his notice and investigate the same. If the law laid down by the Supreme Court in AIR 2001 SC 2637 [LQ/SC/2001/1369] : 2001 AIR SCW 2571, is to be accepted as holding a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below, i.e., if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question consequently he will be deprived of his legitimated right to bring the real accused to books. This can not be the purport of the Code.

(6.) However, Counsel for respondent/State on the basis of the return filed stated that the petitioner has no locus to file the present petition since the order passed by the Chief Judicial Magistrate, Katni clearly denotes that the petitioner was absconding and the complaint could not be registered in absence of the complainant. Moreover, the petitioner has also suppressed the fact that the petition had been filed with a view to force the police authorities not to take any action against the petitioner with the offence registered against him under Section 302 of the Indian Penal Code on the basis of the First Information Report in Police Station, Katni by Raju Yadav on the death of Manmohan Bheel who had succumbed to the gun shot.

(7.) A revision petition was also registered before the District and Sessions Judge, Katni, which is pending consideration and the original record had been summoned from the Chief Judicial Magistrate in the said case and the petitioner had also not impleaded persons against whom the First Information Report was sought to be registered and since the Chief Judicial Magistrate deemed it fit not to pass any orders under Section 166 read with Section 217 of the Criminal Procedure Code whereas the Chief Judicial Magistrate was also competent to take action against the police authorities if he found that there was deliberate or willful non-compliance regarding registration of the alleged complaint.

(8.) Considering the above submissions, it is an admitted fact that filing of an FIR is the basic right of every citizen whether the offence registered has been made out or not is to be decided by the Competent Court. Once the cognizable offence has been made out, the Court can accept or reject the same as provided under the law. The proceedings filed by the respondents vide Annexure R-3, dated 8-9-2005 demonstrate that the complainant had appeared before the Chief Judicial Magistrate, Katni and belies the contention of the Counsel for the State Government that the petitioner/complainant was absconding and demolishes the very ground of the respondents for non-registration of the complaint. Moreover, as observed by the Apex Court in the case of Upkar Singh (supra), the Apex Court had not precluded an aggrieved person from filing a counter case in the case of T.T. Antony v. State of Kerala; in that case the Court had only "held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter complaint by the accused in the 1 st complaint or on his behalf alleging a different version of the said incident.

(9.) And further, but when there arc rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on Under both of them by the same investigating agency. Thus, if the concerned police refuses to register a counter complaint, it would be open to the Magistrate at any stage to direct the police to register the complaint brought to his notice and investigate the same. The Court also observed that although T.T. Antonys case was long accepted to be holding the field. Such conclusion would be disastrous. The case did not consider the right of an aggrieved person to file a counter claim and hence held that complaint was permissible under such circumstances. In the instant case also the filing of the revision lends credence to the counter claim of the petitioner who is an aggrieved person filing a counter claim and there is no reason to disbelieve the same or that it is hit by Section 161 or 162 of the Criminal Procedure Code.

(10.) When an FIR is lodged and the conditions precedent are satisfied, the same has to be registered and a crime number has to be allotted and it is the duty of the Magistrate under Section 190 of the Criminal Procedure Code to take cognizance of the offence.

(11.) The Apex Court has in the matter of Suresh Chand Jain (supra) observed thus:- Any Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in-charge of the police station as indicate in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer-in-charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.

(12.) And in the case of Mohindro v. State of Punjab and Ors. (supra), Their Lordships directed as under:-

We fail to understand as to how there can be an enquiry without registering a criminal case. On the facts alleged, it transpires that the appellant approached the police for registering a case and get the allegation investigated into and yet for no reasons whatsoever the police failed to register the case. In the aforesaid premises, we allow this appeal and direct that a case be registered on the basis of the report to be lodged by the appellant at the Police Station within a week from today and thereafter the matter will be duly investigated into and appropriate action be taken accordingly.

(13.) Thus, considering the above, it is directed that the respondents register the First Information Report lodged by the petitioner as ordered by the Chief Judicial Magistrate, Katni within a period of one week from today and proceed in accordance with law under Chapter XII of the Criminal Procedure Code, if the FIR in question discloses a cognizable offence. In the result, the writ petition is allowed to the extent indicated hereinabovc without any order as to costs.