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1997 DIGILAW 1436 (RAJ)

Gheesu Lal v. State of Rajasthan

1997-12-02

AMRESH KUMAR SINGH

body1997
Honble SINGH, J. – Heard the learned counsel for the petitioner and the learned Public Prosecutor and perused the record of the case No. 674/86 State vs. Gheesu Lal. (2). It appears that Gheesu Lal (petitioner) filed a complaint in the Court of learned Chief Judicial Magistrate, Pali on 16.12.1985 against three persons, namely, Suresh Chandra, Mod Singh and Vinayak Sharma making allegations relating to commission of offences punishable under Sections 457, 380, 427 read with 34 I.P.C. The complaint was sent to the Superintendent of Police, Pali under Section 156(3) Cr.P.C. for investigation. The police registered a case No. 525/85 under Section 457 and 380 I.P.C. on the basis of the complaint filed by Gheesu Lal. After investigationthe police submitted a final report and further submitted a duly prepared draft of the complaint under Section 211 I.P.C. on printed form bearing No. R.P. Form No. 96. (3). The learned Chief Judicial Magistrate took cognizance of the offence under Section 211 I.P.C. on 1.5.1986 on the basis of the complaint signed by him. The complaint on which the learned Chief Judicial Magistrate took cognizance of the offence under Section 211 I.P.C. was none other but the contents of the complaint prepared by the Police Officer on printed form R.P. Form No. 96. What the learned Chief Judicial Magistrate appears to have done that he merely signed this complaint and took cognizance of the offence under Section 211 I.P.C. There was absolutely no inquiry under Section 340 Cr.P.C. (4). The petitioner moved an application before the learned Judicial Magistrate to whom the case had been transferred after taking of the cognizance, raising objection against the taking of the cognizance by the learned Judicial Magistrate vide order dated 9.7.1992. But the learned Judicial Magistrate rejected the application of the petitioner on the ground that order could not be revised by him. Feeling aggrieved by the proceedings initiated against him the petitioner has come to this Court under Section 482 Cr.P.C. with a prayer that the impugned order as well as the proceedings initiated against him the quashed on the ground that there was no proper complaint as required by Section 195 (1) (b) Cr.P.C. (5). Feeling aggrieved by the proceedings initiated against him the petitioner has come to this Court under Section 482 Cr.P.C. with a prayer that the impugned order as well as the proceedings initiated against him the quashed on the ground that there was no proper complaint as required by Section 195 (1) (b) Cr.P.C. (5). I have carefully considered the submissions made by the learned counsel for the petitioner and perused the record with a view to find out whether the impugned order passed by the learned Chief Judicial Magistrate as well as the order passed by the learned Judicial Magistrate were in accordance with law and it is a case in which inherent powers must be exercised for the purpose of securing justice. (6). In the instant case as the learned counsel for the petitioner has submitted that no cognizance of the offence was taken on the basis of the final report submitted by the Police and that the order passed by the learned Magistrate on the final report submitted by the Police under Section 173 Cr.P.C. is to be regarded as a judicial order for the purpose of Section 195 (1) (b) Cr.P.C. notwithstanding the fact that no cognizance of the offence is taken on the basis of the final report and, therefore, unless there was a proper complaint by a Court, cognizance of the offence under Section 211 I.P.C. could not have been taken by the learned Judicial Magistrate before whom the final report was submitted by the Police for approval. (7). The first important question to be decided in this case is whether there was a proper complaint as required by Section 195 (1) (b) Cr.P.C. before the learned Chief Judicial Magistrate when he took cognizance of the offence under Section 211 I.P.C. on 1.5.1986. (8). On perusal of the record, I find, that the complaint which the learned Chief Judicial Magistrate himself signed and on the basis of which he took cognizance of the offence under Section 211 I.P.C. was drafted by some Police Officer on printed form (R.P. Form No. 960. (8). On perusal of the record, I find, that the complaint which the learned Chief Judicial Magistrate himself signed and on the basis of which he took cognizance of the offence under Section 211 I.P.C. was drafted by some Police Officer on printed form (R.P. Form No. 960. Even the names of the witnesses on the reverse of this complaint appear to have been given by the Police Officer and just above the signature of the learned Chief Judicial Magistrate there is an endorsement showing that the complaint had been drafted at the instance of the Station House Officer of the Police Station Pali. Such complaints can hardly be said to be in accordance under Section 195 (1) (b) Cr.P.C. The learned Chief Judicial Magistrate was, therefore, not justified or legally authorised to adopt the complaint prepared by the Police Officer and put signatures on the place of complainant and to use it as a complaint for the purpose of taking cognizance of the offence under Section 211 I.P.C. As Chief Judicial Magistrate he ought to have realised that while purporting to act as a Chief Judicial Magistrate he has to apply his mind to the matter brought to his notice and in case he thought it fit to file complaint relating to offence under Section 211 I.P.C. he should have himself drafted or dictated the complaint and got it prepared in his own office for the purpose of submission in a competent Court. To say the least, the act of putting signatures on the complaint prepared by the Police Officer does not appear to be warranted by any law nor it appears to be in consonance with the well established principles of administration of justice. On this ground alone this petition deserves to be allowed and the proceedings initiated against the petitioner on 1.5.1986 by taking cognizance of the offence punishable under Section 211 I.P.C. by the learned Judicial Magistrate deserves to be quashed and set aside. (9). On this ground alone this petition deserves to be allowed and the proceedings initiated against the petitioner on 1.5.1986 by taking cognizance of the offence punishable under Section 211 I.P.C. by the learned Judicial Magistrate deserves to be quashed and set aside. (9). The learned counsel for the petitioner has further submitted that in this case it was necessary for the learned Chief Judicial Magistrate to have forwarded the proceedings prescribed in Section 340 Cr.P.C. and that it was obligatory on the part of the Chief Judicial Magistrate to have given an opportunity to the petitioner to show cause why the complaint should not be filed against him and since this has not been done the alleged complaint is not a complaint warranted by law. In support of his submission the learned counsel for the petitioner has placed reliance on the judgment delivered by Single Bench of this Court in Cr.L.R. (Raj.) 1982 Page 329. (10). The petition deserves to be allowed on the second ground mentioned above. (11). There is another reasons for quashing the proceedings. The learned Chief Judicial Magistrate could not himself take cognizance of the offence under Section 211 I.P.C. on the basis of the complaint which he had himself signed as the case before him was not covered by any exception to the general rule that the complainant should not act as a Judge in his own cost. Sub-section (1) of Section 340 Cr.P.C. clearly provide in clause (c) that the complaint is to be sent to the Magi- strate of first class having jurisdiction. By implication, the general rule laid down in Clause (c) of sub-section (1) of Section 340 Cr.P.C. requires that the Court making the complaint under Section 340 Cr.P.C. should be sent to the first class Magistrate for necessary action. Section 352 Cr.P.C. provides that; ``Except as provided in Sections 344, 345, 349 and 350, no Judge of a Criminal Court (other than a Judge of a High Court) or Magistrate shall try any person for any offence referred to in Section 195, when such offence is committed before himself or in contempt of his authority or is brought under his authority, or is brought under his notice as such Judge or Magistrate in the course of a Judicial proceeding. (12). (12). On a careful consideration, I am, of the opinion that under clause (c) of sub-section (1) of Section 340 Cr.P.C. the learned Chief Judicial Magistrate should not have taken cognizance on the basis of the complaint signed by himself. He should have forwarded the complaint to a Magistrate of first class having jurisdiction. (13). For the above reasons the petition deserves to be allowed and is hereby allowed. The order dated 1.5.1986 passed by the learned chief Judicial Magistrate for initiating proceedings against the petitioner by taking cognizance in respect of the offence punishable under Section 211 I.P.C. and the impugned order dated 9.7.1992 passed by the learned Judicial Magistrate in criminal case No. 674/86 State vs. Gheesu Lal whereby the application filed by the petitioner was rejected, are hereby quashed and set aside and the proceedings against the petitioner are hereby dropped. (14). While parting with this petition, I, feel that it is necessary in the administration of justice that a copy of this order be sent to Honble the Chief Justice for perusal and consideration whether the Chief Judicial Magistrates in the State should be directed not to sign the complaints prepared by the Police Officers under Section 211 I.P.C. as has been done in this case by the learned Chief Judicial Magistrate, Pali. The Registrar shall place a copy of this order before the learned Honble the Chief Justice for suitable orders.