BHINWA RAM v. STATE OF RAJASTHAN — 1998 DIGILAW 110 (RAJ)

Judgment A. K. SINGH, J. ( 1 ) HEARD the learned counsel for the petitioner and the learned Public Prosecutor. None appeared for the non-petitioner No. 2. ( 2 ) THIS petition u/s. 482 is directed against the order dated 31st July, 1996 passed by the learned Civil Judge (Jr. Division) and Judicial Magistrate, Ist Class, Nawa in criminal case No. 342/92 State v. Bhinwa Ram and the charge framed against the petitioner u/s. 409, IPC. It is prayed by the petitioner that the trial which is pending in the Court of learned Civil Judge (Jr. Division) and Judicial Magistrate, Ist Class, Nawa and all other proceedings relating thereto, be quashed in the interest of justice. ( 3 ) THE learned counsel for the petitioner has submitted that no prima facie case is made out against the accused so as to justify the framing of the charge u/s. 409, IPC and therefore, the charge framed against the accused and the trial which is pending in the lower Court deserve to be quashed and they amount to abuse of the process of the Court. ( 4 ) THE learned Public Prosecutor has opposed this petition and supported the charge framed against the accused by the learned trial Magistrate. ( 5 ) THE facts of the case may be summarised as below :-ON 27th July, 85 Rugnath Ram submitted a complaint in the Court of Munsif and Judicial Magistrate, Nawa alleging the commission of offences u/ss. 409 and 420, IPC. The complaint of Rugnath Ram was sent to the Station House Officer of the Police Station. Maroth u/s. 156 (3), Cr. P. C. On the basis of that complaint the F. I. R. No. 39 dated 3rd August, 85 was registered in respect of offences u/ss. 409 and 420, IPC. After conducting investigation the police submitted the report u/s. 173 (2), Cr. P. C. on 14th July, 1986 alleging the commission of offences u/ss. 409 and 420, IPC by Shri Bhanwar Lal Sharma. The learned Munsif and Judicial Magistrate took cognizance of the offences u/ss. 409 and 420, IPC on the basis of the report filed by the police. The criminal (sic) instituted in the Court of learned Munsif and Judicial Magistrate was registered at No. 168a/86. The case was fixed on 14-10-86 for arguments and charge. The learned Munsif and Judicial Magistrate took cognizance of the offences u/ss. 409 and 420, IPC on the basis of the report filed by the police. The criminal (sic) instituted in the Court of learned Munsif and Judicial Magistrate was registered at No. 168a/86. The case was fixed on 14-10-86 for arguments and charge. ( 6 ) BEFORE the arguments and charge could be heard in criminal case No. 168a/86. Gheesa Ram filed a complaint against Bhinwa Ram alleging the commission of offences u/ss. 409 and 420, IPC. This complaint was also sent to the Station House Officer of the Police Station, Maroth u/s. 156 (3), Cr. P. C. On the basis of that complaint filed by Gheesa Lal, registered the F. I. R. No. 10 dated 6th February, 1987. After conducting investigation, the police submitted the final report No. 13/87 stating therein that the allegations made by Gheesa Lal were false and calculated to falsely implicate Bhinwa Ram. After submission of the final report No. 13/87, notices were ordered to be issued to the complainant Gheesa Lal. He appeared through his counsel and dates were fixed for hearing arguments of the complainant Gheesa Lal, 31st May, 1988 was fixed for that purpose. ( 7 ) IN criminal case No. 168a/86, arguments on charge were heard on 4th May, 1988 and the order was passed on 31st May, 19 88. The relevant portion of the order has been reproduced by the Munsif and Judicial Magistrate in his order dated 25th November, 1992. By the order dated 31st May, 1988 passed in criminal case No. 168a/86 State v. Bhanwar Lal, warrant of arrest was issued against Bhinwa Ram on the accusation that he had committed offences u/ss. 409 and 420, IPC. Since the final report No. 13/87 was also listed on 31st May, 1988 for hearing arguments of the counsel of the complainant Gheesa Lal, the final report also came before the Munsif and Judicial Magistrate for consideration. in the proceedings sheet of the above mentioned final report, it was recorded that in criminal case No. 168a/86, cognizance of the offences u/ss. 409 and 420, IPC had been taken against the accused Bhinwa Ram and therefore, it was directed that the final report be annexed with the record of the criminal case No. 168a/86. in the proceedings sheet of the above mentioned final report, it was recorded that in criminal case No. 168a/86, cognizance of the offences u/ss. 409 and 420, IPC had been taken against the accused Bhinwa Ram and therefore, it was directed that the final report be annexed with the record of the criminal case No. 168a/86. This order shows that the learned Munsif and Judicial Magistrate did not take cognizance of any offence on the basis of the final report No. 13/87 and that the petitioner Bhinwa Ram was made an accused in the criminal case No. 168a/86. ( 8 ) IN criminal case No. 168a/86, after the appearance of the accused Bhinwa Ram, the learned Munsif and Judicial Magistrate heard arguments and charge. He was faced with a difficult situation. In the same case, he could not frame charges against both the accused. According to the allegations made by the prosecution, Bhanwar Lal had collected in an unauthorised manner a sum of Rs. 949/- from 89 persons and issued receipt to them. This amount of Rs. 949/- consisted of admission fee and membership fee. The prosecution case was that Bhanwar Lal had misappropriated the above mentioned amount of Rs. 949/- after he collected it from 89 persons by making false accusations. The defence version set up by Bhanwar Lal was that he had handed over the amount of Rs. 949/- and the receipt-book to Bhinwa Ram and that a "no Dues Certificate" had been issued and the same was signed by Bhinwa Ram and other office bearers of the Samiti, and therefore, no offence was prima facie made against him. The defence version was not found to be true and therefore, charge-sheet was filed against Bhanwar Lal and cognizance of the offence u/ss. 409 and 420, I. P. C. was taken by the learned Munsif and Judicial Magistrate and Bhanwar Lal was made an accused. So long the accusation made against Bhanwar Lal was not withdrawn, Bhinwa Lal could not be made an accused in the case. The learned Munsif and Judicial Magistrate, Nawa did not apply his mind properly to the facts and circumstances of the case when he passed the order dated 31st May, 1988 and directed the issue of process against Bhinwa Ram. He ought to have considered whether any case was made out against the accused Bhinwa Lal at that stage. The learned Munsif and Judicial Magistrate, Nawa did not apply his mind properly to the facts and circumstances of the case when he passed the order dated 31st May, 1988 and directed the issue of process against Bhinwa Ram. He ought to have considered whether any case was made out against the accused Bhinwa Lal at that stage. ( 9 ) SINCE, the learned Munsif and Judicial Magistrate could not frame charges against Bhanwar Lal and Bhinwa Ram both for the embezzlement of the amount of Rs. 949/-, he tried to find out the way and he directed that the case of Bhinwa Ram should be separated from the case of Bhanwar Lal. According to the directions given by him in criminal case No. 168a/86 State v. Bhanwar Lal was to be continued against Bhanwar Lal and a separate case was to be registered on the basis of the final report No. 13/87, which had already been ordered to be attached with the record of the criminal case No. 168a/86. On the same day he passed another order in which he observed that cognizance of the offence u/ss. 409 and 420, IPC had been taken on the basis of the final report No. 13/87. He referred to the order dated 25th November, 92 passed in criminal case No. 168a/86 and observed that in pursuance of that order criminal case No. 343/92 was registered against Bhinwa Ram. ( 10 ) ON 31st July, 96, the charge u/s. 409, IPC was framed against the accused petitioner Bhinwa Ram in criminal case No. 343/92, which was registered against Bhinwa Ram only. Feeling aggrieved by the framing of charge as well as the initiation of proceedings against him, Bhinwa Ram has filed this petition u/s. 482, Cr. P. C. with a prayer that charge as well as the proceedings instituted against him be quashed. ( 11 ) I have carefully considered the facts and circumstances of the case. In criminal case No. 168a/86 State v. Bhanwar Lal, so long the learned Judicial Magistrate did not hold that the amount of Rs. 949/- had been handed over to Bhinwa Ram by Bhanwar Lal, no justification for issuing warrant against Bhinwa Ram could arise, because if the amount of Rs. 949/- was misappropriated by Bhanwar Lal, the allegation that the same amount was misappropriated by Bhinwa Ram could not be made. 949/- had been handed over to Bhinwa Ram by Bhanwar Lal, no justification for issuing warrant against Bhinwa Ram could arise, because if the amount of Rs. 949/- was misappropriated by Bhanwar Lal, the allegation that the same amount was misappropriated by Bhinwa Ram could not be made. Issue of warrant of arrest against the petitioner Bhinwa Ram in criminal case No. 168a/86 by the learned Munsif and Judicial Magistrate was improper and without any justification as there was no sufficient ground to proceed against the accused petitioner Bhinwa Ram. Issue of warrant of arrest against the petitioner by order dated 31st May, 1988 amounted to abuse of the process of the Court and therefore, it is necessary for the interest of justice that the order dated 31st May, 88, should be quashed and set aside. ( 12 ) THE order dated 25th November, 1992 by which order the learned Munsif and Judicial Magistrate ordered that the case of Bhinwa Ram should be separately registered on the basis of the final report No. 13/87, was also without jurisdiction. The learned Judicial Magistrate did not apply his mind to the final report No. 13/87 and the documents attached thereto. In fact, on 31st May, 1988, he declined to pass any order on that final report and directed that the report be annexed with the record of the criminal case No. 168a/86. Therefore, the order dated 25th November, 1992 for registering a separate case on the basis of the final report No. 13/87 was without jurisdiction and improper. That order amounts to abuse of the process of the Court and deserves to be quashed and set aside. ( 13 ) IT is true that the Court, which has taken cognizance of the offence may direct that two or more accused persons be tried separately. But, before a separate trial can be ordered, it is necessary that there must be sufficient grounds to proceed against the accused, who is intended to be tried separately. In the instant case, I have come to the conclusion that there was no sufficient ground to proceed against the accused petitioner Bhinwa Ram and the order dated 31st May, 1988 deserves to be quashed and set aside. In the instant case, I have come to the conclusion that there was no sufficient ground to proceed against the accused petitioner Bhinwa Ram and the order dated 31st May, 1988 deserves to be quashed and set aside. In view of this fact, the order dated 25th November, 1992, by which accused petitioner Bhinwa Ram was ordered to be tried separately, cannot be sustained and to that extent the order dated 25th November, 1992 deserves to be quashed and set aside. ( 14 ) SINCE the issue of warrant of arrest against the accused petitioner Bhinwa Ram by order dated 31st May, 1988 in criminal case No. 168a/86 was without sufficient grounds and that order deserves to be quashed, the proceedings of the criminal case No. 343/92 also deserves to be quashed, because the conditions thereof would amount to abuse of the process of the Court. ( 15 ) FOR the reasons mentioned above, this petition deserves to be allowed and is hereby allowed. The order dated 31st May, 1988 passed in criminal case No. 168a/86 State v. Bhanwar Lal, whereby the accused petitioner Bhinwa Ram was proceeded against for the offences u/ss. 409 and 420, IPC is hereby quashed and set aside. The order dated 25th November, 1992 passed by the learned Munsif and Judicial Magistrate, Nawa in criminal case No. 168a/86, whereby he directed that a separate case should be registered against Bhinwa Ram is also quashed and set aside. The order dated 25th November, 1992 passed in criminal case No. 343/92 State v. Bhinwa Ram is without jurisdiction. This order and all subsequent proceedings taken in the criminal case No. 343/92, deserves to be quashed and the same are hereby quashed. The bill bonds of the petitioner Bhinwa Ram are hereby discharged. ( 16 ) NOTHING contained in this order shall prevent the police officer from making any further investigation under sub-section (8) of Section 173, Cr. P. C. in case accused Bhanwar Lal is found not guilty of the charges levelled against him, nor the learned Munsif and Judicial Magistrate, Nawa shall be debarred from taking cognizance of the offence u/s. 409, IPC against any person including the petitioner, if a just and proper action for taking cognizance arises before him after the accused Bhanwar Lal is found not guilty of the charges levelled against him. A copy of this order along with the record of the case be returned to the learned Munsif and Judicial Magistrate, Nawa. Petition allowed.