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Rajasthan High Court · body

1997 DIGILAW 1310 (RAJ)

Kana Ram v. State of Rajasthan

1997-11-06

B.J.SHETHNA

body1997
Honble SHETHNA, J.–Heard Mr. S.S. Rathore-amicus curie on behalf of the petitioner and the learned P.P. Mr. M.L. Goyal. Admit. Issue notice to the respondent Mr. M.L. Goyal learned P.P. accepts notice for the respondent State. (2). Kana Ram who is an illiterate person submitted a typed application dated 16.11.1995 to the Honble Chief Justice of this Court at Jaipur Bench. He (Kana Ram) has put up his thumb impression in the said application which was treated as a Misc. Criminal Petition under Section 482 Cr.P.C. by this Court. The learned counsel shri R.S. Rathore was appointed as Amicus Curie to assist the Court on behalf of Shri Kana Ram. (3). It is stated in the application by the petitioner that he was kidnaped by accused persons Bhagirath and Others on 25.6.1995 and an attempt to commit his murder was also made by sharp-edged weapon. In the said incident, 6 injuries were received by him, not only that his both hands were literaly cut. The photo-graph of Kana Ram is also along with his application which is also on the record of the case. Accordingly, the police registered an F.I.R. No. 137/95 at Police Station, Todaraising against the accused persons for the offence punishable under Sections 147, 148, 149, 326, 307 and 365 IPC. During the course of investigation, the Investigating Officer got the medical report from the Doctor dated 10.10.1995 which shows that the injuries were sufficient in ordinary course to cause death of that person. (4). On completing the investigation, he filed a challan before the Court of Additional Chief Judicial Magistrate, Malpura, District Tonk, against the accused persons for the aforesaid offences. Surprisingly, the learned Judge by his impugned order dated 16.11.1995 held that no case is made out under Section 307 IPC against the accused persons and did not take cognizance for the offence under Section 307 IPC, and started with the trial for the rest of the offences. (5). As stated earlier, Kana Ram submitted an application dated 16.11.1995 and addressed to Honble Chief Justice of this Court. The same has been treated as a Petition under Section 482 Cr.P.C. The record of the case was called for which is before this Court. This reasons assigned by the learned Magistrate in his order dated 16.11.95 are wholly unsustainable. (5). As stated earlier, Kana Ram submitted an application dated 16.11.1995 and addressed to Honble Chief Justice of this Court. The same has been treated as a Petition under Section 482 Cr.P.C. The record of the case was called for which is before this Court. This reasons assigned by the learned Magistrate in his order dated 16.11.95 are wholly unsustainable. When the police filed challan against the accused persons for the offence under Section 307 IPC before the learned Magistrate,then he had no jurisdiction to deal with the case as the offence u/s. 307 IPC is exclusively triable by the court of Session. Therefore, he had to commit the case to the court of Session. Inspite of this, he passed the impugned order and did not take cognisance for the offence under Section 307 IPC, though there was a thump- ing evidence against the accused persons for the offence under Section 307 IPC. A very serious allegation has been made by the petitioner Kana Ram in para 5 of the petition wherein he has stated that, ``after filing of the challan and before the arguments regarding the committal proceedings and taking cognizance, the learned Additional Chief Judicial Magistrate, Malpura (Shri Bhagwan Sahai Khan- delwal) called the applicant at his residence at Malpura and demanded Rs.5,000/- from him (Kana Ram) and told him that if he will pay that amount, then he will take cognizance for offence under Section 307 IPC against the accused persons and commit the case to the Court of Session to Additional District Judge, Malpura. But, he (the petitioner) was a poor and helpless person whose both the hands were cut of by the accused persons. He had no means of livelihood and he himself was dependent, therefore, expressed his inability to make such payment. Thereupon, the learned Additional Chief-Judicial Magistrate, Malpura took Rs. 20,000/- as bribe from the accused persons and passed an order on 16.11.1995 in most arbitrary and unfair manners and kept the trial of the case before him by not taking cognizance for the offence under Section 307 IPC and also assured the accused persons that in that case he will complete the trial as early as possible by giving an early date and acquit them. (6). The aforesaid allegations made against the learned Additional Chief Judi- cial Magistrate are of very serious nature. (6). The aforesaid allegations made against the learned Additional Chief Judi- cial Magistrate are of very serious nature. It clearly appears that the allegations made against him are substantiate from the reasons assigned by him in his impugned order. (7). In view of the above discussion, this petition has to be allowed and the impugned order dated 16.11.1995 passed by the learned Additional Chief Judicial Magistrate is required to be set-aside. (8). Accordingly, this petition is allowed, the impugned order dated 16.11.95 passed by the Additional Chief Judicial Magistrate, Malpura is set-aside. The matter is remanded to the successing in the office of the learned Additional Chief Judicial Magistrate, Malpura with a direction to take cognizance against the accused for the offence under Sec.307 IPC and commit the case to the court of Session at the earliest. (9). It is expected that the learned Sessions Judge dealing with the Sessions Case will try and decide the case as early as possible in view of the peculiar facts and circumstances. (10). The office is directed to sent a copy of this order to the Additional Chief Judicial Magistrate Malpura, forthwith. (11). Before parting with the order, I must state that prima facie it appears that the learned Additional Chief Judicial Magistrate, Malpua Shri Bhagwan Sahai Khandelwal has passed the impugned order dated 16.11.1995 in a highly suspecious circumstances and there is lot of substance in the allegations made by the petitio- ner Shri Kana Ram in para 5 of this petition against the learned Magistrate. It is required to be enquired into immediately. Under the circumstances, the Registry of this Court is directed to initiate departmental proceedings against Shri Bhagwan Sahai Khandelwal Additional Chief Judicial Magistrate, who passed the impugned order dated 6.11.1995, when he was Additional Chief Judicial Magistrate, Malpura. Such person should not be continued in the office till the departmental enquiry is concluded against him. Therefore, the concerned Officer may also be placed under suspension till the enquiry is completed. The enquiry be initiated which may be concluded within 6 months from its initiation. (12). This Court behove Mr. R.S. Rathore for his valuable assistance as Amicus Curie in the matter.