Om Singh v. Dr. Swaroop Ram Choudhary(6) — 1993 DIGILAW 59 (RAJ)

JAIN, J.- This petition has been filed under Section 482, Cr.P.C. 1973 for quashing the proceedings of the Criminal case No. 138/90- Dr. Swaroop Ram Choudhary vs. Om Singh Rajpurohit under Sections 186 and 353, I.P.C. pending in the court of the Munsif-cum-Judicial Magistrate, Bilara. The facts of the case giving rise to this petition may be summarised thus. (2) On July 21, 1990, the complainant Dr. Swaroop Ram Choudhary, Officer-Incharge, Government Hospital, Bilara (Jodhpur) filed a complaint against the accused-petitioner under Section 186 and 353, I.P.C. with the allegations, in short, as follows : On July 18, 1990, he was working in the said hospital. Dr. K.N. Pandey, Dr. G.R. Bhandari and Dr. D.L. Ranga were also discharging their duties there. At about 10.30 A.M., the accused-petitioner came in the outdoor ward of the hospital where he was seeing the patients. He used criminal force to deter him from discharging his duties, he did not allow him to see the patients for about half an hour and he threatened him that he would defame him in the newspapers as he is a correspondent. If his said colleagues would not have saved him, he would have injured him. He has previously been convicted and sentenced in criminal cases by the Sessions Judge, Jodhpur and Munsif-cum-Judicial Magistrate, Bilara. The same day, a report was also lodged in the Police Station, Bilara but the police has not taken any action on it so far. (3) On this complaint, the learned Munsif-Cum-Judicial Magistrate, Bilara took cognizance of the offences punishable under sections 186 and 353, I.P.C. against the accused-petitioner and repeatedly issued bailable warrants for Rs. 3,000/- each against him. After great efforts, warrant was executed. The accused-petitioner put his appearance on September 19, 1991. After several adjournments, substance of accusation was explained on September 2, 1992 to him as required under Section 251, Cr.P.C. (4) It has been contended by the learned counsel for the accused- petitioner that cognizance was taken against the accused- petitioner without even examining the complainant under section 200 and his witnesses under Section 202, Cr.P.C. proceedings taken without complying with these provisions are void and deserve to be quashed. He further contended that the first proviso of Section 200, Cr.P.C. is not applicable as the complaint was not filed by the complainant Dr. Swaroop Ram Choudhary in the discharge of his official duties. He further contended that the first proviso of Section 200, Cr.P.C. is not applicable as the complaint was not filed by the complainant Dr. Swaroop Ram Choudhary in the discharge of his official duties. He lastly contended that the accused- petitioner has greatly been prejudiced by noncompliance of Sections 200 and 202, Cr.P.C. as there would be no material for the cross-examination of the complainant and his witnesses by him. (5) There is no substance in this petition. At this stage of the case, averments made in the complaint are only to be seen. They clearly make out necessary ingredients of the offences punishable under Sections 186 and 353, I.P.C. against the accused-petitioner. The question for consideration in this case is whether the first proviso of Section 200, Cr.P.C. is applicable in this case or not. It will be best to quote it here. It runs as under: — "Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses: — (a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint." (6) Rule 3 (1), Rajasthan Civil Services Conduct Rules, 1971 requires that every Government servant shall at all times maintain devotion to duties and dignity of office. For maintaining devotion to duty and dignity of office it was necessary on the part of the complainant to take necessary action against the accused-petitioner for his aforesaid actions. If the complainant would not have filed the complaint against the accused-petitioner, he would have been guilty of the breach of the aforesaid provisions of the Rajasthan Civil Services Conduct Rules, 1971 and there would have been possibility of the re-occurrence of the aforesaid occurrence. It was also quite likely that the accused-petitioner would have behaved similarly with other doctors, compounders and nurses working in the said hospital. It is stated in the complaint that the complainant Dr. Swaroop Ram Choudhary was working in those days as Medical Officer-Incharge of the hospital. Sub-rule (2) of Rule 3, Rajasthan Civil Services Conduct Rules, 1971 requires that every Govt. servant holding supervisory posts take all such possible steps to ensure the integrity and devotion to duty of all Govt. servants for the time being under his control and authority. Swaroop Ram Choudhary was working in those days as Medical Officer-Incharge of the hospital. Sub-rule (2) of Rule 3, Rajasthan Civil Services Conduct Rules, 1971 requires that every Govt. servant holding supervisory posts take all such possible steps to ensure the integrity and devotion to duty of all Govt. servants for the time being under his control and authority. If the complaint would not have been filed against the accused- petitioner, the integrity and devotion to duty of other doctors, compounders and nurses working in the said hospital would have adversely been affected. In view of the bar imposed by Section 195 (1), Cr.P.C, cognizance of the offence punishable under Section 186, I.P.C. could be taken on the complaint of Dr. Swaroop Ram Choudhary only. Under the facts and circumstances of the case, it cannot be said that the complainant Dr. Swaroop Ram Choudhary was not acting in the discharge of his official duties when he filed the said complaint. The learned Munsif-cum-Judicial Magistrate has rightly held that the aforesaid proviso of Section 200, Cr.P.C. is applicable in this case. It has been held in the case reported in 1973 AWR 451 at page 453 (1) that in a complaint filed under Section 332, I.P.C. and other cognate offences by the District Judge in his administrative capacity his examination under Section 200 Cr.P.C. was not necessary (Foot Note No. 10 - Note No. 19 to Section 200 Cr.P.C. page 419 of AIR Manual Volume XIII 4th Edition). (7) There is also no force in the contention of the learned counsel for the accused-petitioner that the accused-petitioner has greatly been prejudiced due to non-examination of the complainant under Section 200 and his witnesses under Section 202, Cr.P.C as there is no material for the cross-examination of him and his witnesses. As a matter of fact, non-examination of witnesses under Section 202, Cr.P.C. may prove beneficial to the accused-petitioner. The complainant witnesses may easily turn hostile as there is now no previous statement for deterring them to give their evidence in favour of the accused-petitioner. The accused-petitioner can well examine the complainant on the basis of report made to the police and the complaint. He could file a revision petition under Section 397, Cr.P.C. but he had not filed it. Thus there is no force in the petition. (8) Accordingly, the petition moved under Section 482, Cr.P.C. is dismissed. The accused-petitioner can well examine the complainant on the basis of report made to the police and the complaint. He could file a revision petition under Section 397, Cr.P.C. but he had not filed it. Thus there is no force in the petition. (8) Accordingly, the petition moved under Section 482, Cr.P.C. is dismissed. The accused-petitioner will appear before the learned Munsif-cu-Judicial Magistrate, Bilara on February 8, 1993.