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1998 DIGILAW 92 (RAJ)

Dhanpal Jain v. State of Rajasthan

1998-01-19

AMRESH KUMAR SINGH

body1998
Honble SINGH, J.–Heard the learned counsel for the petitioner and the learned Public Prosecutor none present for the non-petitioner No.2 inspite of service of notice on him. (2). By his order dated 1.8.1995 the learned Civil Judge (Junior Division) and Judicial Magistrate, First Class, Ghatol issued process against the petitioner Dhan- pal and another accused Shantilal for having committed offences under Section 420 IPC and under Section 3(i)(x) of the SC/ST (Prevention of Atrocities), Act. 1989. Feeling aggrieved by the above mentioned order the petitioner Dhanpal has approached this Court under Section 482 Cr.P.C. and prayed that the impugned order dated 1.8.1995 be quashed and set aside. (3). The learned counsel for the petitioner has submitted that there were no grounds to proceed against the petitioner for the offences under Section 420 IPC and under Section 3(i)(x) of the SC/ST (Prevention of Atrocities), Act, and therefore, the impugned order deserves to be quashed and set aside. The learned Public Prosecutor has supported the order passed by the learned Judicial Magistrate. (4). I have heard the arguments advanced by the learned counsel for the petitioner and the learned Public Prosecutor and perused the record of the case. It appears that the non-petitioner No.2 (Laxman Lal) submitted a complaint in writing before the Director General of Police Rajasthan, Jaipur and that complaint was forwarded to the Station House Officer of the Police Station Khamera, District Banswara. On the basis of the aforesaid complaint submitted by the non-petitioner No.2 the Station House Officer of Police Station Khamera registered the first information report No.55/94 in respect of the offences under Sections 420, 406 IPC and under Section 3(i)(x) of the SC/ST (Prevention of Atrocities), Act. (5). After completing investigation the Station House Officer submitted a final report under Section 173 Cr.P.C., stating therein, that the investigation did not reveal and offence as alleged by the complainant. (6). After the submission of the final report by the Station House Officer the non-petitioner No.2 appeared before the learned Judicial Magistrate and offered to produce evidence. (7). (5). After completing investigation the Station House Officer submitted a final report under Section 173 Cr.P.C., stating therein, that the investigation did not reveal and offence as alleged by the complainant. (6). After the submission of the final report by the Station House Officer the non-petitioner No.2 appeared before the learned Judicial Magistrate and offered to produce evidence. (7). On 19.4.1995 the learned Judicial Magistrate recorded statement of non-petitioner No.2 under Section 200 Cr.P.C. On the same day he recorded the statements of Gautam Lal Khamji and Kalu Ram under Section 202 Cr.P.C. After hearing arguments advanced by the counsel for non-petitioner No.2 and considering the protest petition, the papers submitted by the Police and the statements of the witnesses who were examined under Sections 200 and 202 Cr.P.C., the learned Judicial Magistrate held that there were sufficient grounds to proceed against the accused Shanti Lal and Dhanpal for having committed offences under Section 420 IPC and under Section 3(i)(x) SC/ST (Prevention of Atrocities), Act. (8). Since process has been issued by the learned Judicial Magistrate after con- ducting inquiry under Sections 200 and 202 Cr.P.C. it is obvious that in the instant case cognizance has been taken under Section 190(1)(a) Cr.P.C. In other words the case has been instituted on the complaint made by non-petitioner No.2. By his order dated 1.8.1995 the learned Judicial Magistrate directed the police to seize certain documents which according to the complainant were retained by accused persons. In his order the learned Judicial Magistrate did not point out the necessity of giving that direction nor he pointed out the provision under which he gave the direction to the Dy. S.P., Ghatole to seizure documents mentioned in the order. It is, therefore, necessary to consider whether the aforesaid direction given to the Dy. S.P., Ghatole to seize the documents mentioned in the order could be lawfully given by the learned Judicial Magistrate while passing the impugned order dated 1.8.1995. (9). In view of the submissions made by the learned counsel for the petitioner and the facts and circumstances of the case two questions arise for determination. S.P., Ghatole to seize the documents mentioned in the order could be lawfully given by the learned Judicial Magistrate while passing the impugned order dated 1.8.1995. (9). In view of the submissions made by the learned counsel for the petitioner and the facts and circumstances of the case two questions arise for determination. (1) whether there are sufficient grounds to proceed against the petitioner and any other person on the charge that they have committed offences punishable under Section 420 IPC and under Section 3(i)(x) SC/ST (Prevention of Atrocities), Act or any other offence, (2) whether the direction contained in the impugned order dated 1.8.1995 that the Dy. S.P., Ghatole shall seize the documents mentioned in the order could be lawfully given by the learned Judicial Magistrate. (10). The facts of the case as they are revealed by the statements of the complainant (non-petitioner No.2) and his witnesses as well as from the complaint made to the Director General of Police, Jaipur may be summarised as below: (11). It was alleged by the non-petitioner No.2 that in the partnership of Gautam he purchased bus No. RJJ 3888 from Shanti Lal for a sum of Rs. 2 lakhs and 24 thousand. Dhanpal had given the finance for the purchase of that bus. Non-petitioner No.2 and Gautam paid a sum of Rs. 1 lakh 57 thousand and 500/- towards the price of the bus. A sum of Rs. 75 thousand remained unpaid and this amount was to be paid in installment. Some time was given by Dhanpal to the non-petitioner No.2 for making payment of Rs. 75,000/- which had remained unpaid but before the expiry of that period Dhanpal took possession of the bus. At that time he represented that the income of the bus would be adjusted towards the unpaid price and after the price would be fully paid the bus would be given. It was further alleged by non-petitioner No.2 that Dhanpal used the bus for four months (after it was taken back from the complainant and Gautam) and after the expiry of period of four months the complainant went to Dhanpal in order to find out how much amount remained due. He asked Dhanpal to give accounts and Dhanpal told him that in- come from the bus during last four months was zero. He asked Dhanpal to give accounts and Dhanpal told him that in- come from the bus during last four months was zero. It was also alleged by non- petitioner No.2 that when the complainant went to the house and shop of Dhanpal the accounts were not given and the right of the complainant to demand account was also questioned. It was also alleged that on the same day when the complainant went to Dhanpal, Dhanpal assaulted him and also abused him and questioned his capacity to posses the bus and also gave him a beating. The non-petitioner No.2 after the aforesaid incident got his injuries medically examined by a Doctor. (12). The crucial question is whether offences under Sections 420 IPC and under Section 3(i)(x) SC/ST (Prevention of Atrocities), Act are prima facie made out as was observed by the learned Judicial Magistrate in impugned order dated 1.8.1995. (13). There is no allegation that any false representation was made by the accused persons with a view to deceive the complainant and his partner Gautam so as to induce them to delivery any property to the accused persons or to induce them to do or abstain from doing anything which they would not have done or omitted if they would not have been deceived. In other words the facts of the case do not show that any offence of cheating as defined in Section 415 Cr.P.C., was committed. It is an admitted fact that a sum of Rs. 75,000/- remained unpaid and, therefore, Dhanpal had taken possession of the bus more than four months before the complaint was filed by the non-petitioner No.2. There is nothing to show that any deception was practised by Dhanpal or Shantilal when the bus was taken back from the complainant and his partner Gautam. In these circumstances no offence under Section 420 IPC, appears to be made out by the facts alleged by the complainant. There is nothing to show that any deception was practised by Dhanpal or Shantilal when the bus was taken back from the complainant and his partner Gautam. In these circumstances no offence under Section 420 IPC, appears to be made out by the facts alleged by the complainant. In fact the facts which were brought to the notice of the learned JudicialMagistrate cannot be said to constitute any offence under Section 420 IPC and, there- fore, the learned Judicial Magistrate could neither take cognizance of the offence under Section 420 IPC, nor he could have issued process under Section 204 Cr.P.C., against the accused persons on charge under Section 420 IPC the impugned order so far as it relates to the offence under Section 420 IPC, deserves to be quashed as the facts do not constitute any offence under Section 420 IPC. (14). So far offence under Section 3(i)(x) SC/ST (Prevention of Atrocities), Act is concerned, Section 3(i)(x) SC/ST of that Act requires that the alleged insult or humiliation should have been caused in a place within public view. In the instant case the complainant approached the accused persons at two places, at their house, and at their shop. So far as the first incident is concerned that incident occu- rred at the shop of Dhanpal and all that occurred at the shop was that Dhanpal questioned the complainants right to demand the accounts and did not give him the accounts relating to the income of the bus. There is nothing to show that at his shop Dhanpal intentionally insulted or intimdated the complainant with the intent of humiliating him. The second incident occurred at the house of accused persons because it has not been alleged that the second incident occurred at any public place. In the absence of any allegation that the alleged insult was offered in public view it cannot be said that the offence under Section 3(i)(x) SC/ST (Prevention of Atrocities), Act is prima facie made out by the facts alleged by the complainant. In view of the above facts the learned Judicial Magistrate could not have taken cogni- zance of the offence under Section 3(i)(x) SC/ST (Prevention of Atrocities), Act nor he could legitimately issue process under Section 204 Cr.P.C. on a charge under Section 3(i)(x) SC/ST (Prevention of Atrocities), Act. (15). In view of the above facts the learned Judicial Magistrate could not have taken cogni- zance of the offence under Section 3(i)(x) SC/ST (Prevention of Atrocities), Act nor he could legitimately issue process under Section 204 Cr.P.C. on a charge under Section 3(i)(x) SC/ST (Prevention of Atrocities), Act. (15). For reasons mentioned above the impugned order dated 1.8.1995 so far it purports to issue process against the accused persons (including petitioner) for the offences under Section 420 IPC and under Section 3(i)(x) SC/ST (Prevention of Atrocities), Act, are concerned is without jurisdiction and amounts to abuse of the process of the Court and it deserves to be quashed and set aside. (16). So far as the direction given by the learned Judicial Magistrate to the Dy. S.P. Ghatole, that two stamp papers be seized is concerned, there does not appear to be any justification for giving such a direction. The police had already investigated the case which was registered on the basis of the complaint made by the non-petitioner No.2 to Director General of Police, Jaipur and after investigation submitted the final report. Neither the Investigating Officer started further investigation under Section 173(8) Cr.P.C., nor the learned Judicial Magistrate made any order for further investigation under Section 156(3) Cr.P.C. In these circumstances when no further investigation was being made nor was ordered there was no justification for giving the above mentioned direction to the Dy. S.P.,Ghatole. The learned Judicial Magistrate had taken cognizance under Section 190(1)(a) Cr.P.C.; conducted inquiry under Sections 200 and 202 Cr.P.C. and in such an inquiry there was no occasion for him to give any direction to the Dy. S.P., Ghatole, to seize any documents. Investigation which could have been directed by the learned Judicial Magistrate conducting inquiry under Sections 200 and 202 Cr.P.C. is dealt with in Section 202(1) Cr.P.C. It is well established that the investigation which may be directed under Section 202(1) Cr.P.C. is different from the investigation which may be conducted by the Police under Sections 156 and 157 Cr.P.C. The investigation which is conducted by the police under Sections 156 and 157 Cr.P.C., in exercise of statutory powers conferred on the Station House Officer of the Police Station, is conducted in exercise of plenary powers of police to investigate, in respect of cognizable offence. On the other hand the investigation which may be ordered under Section 202(1) Cr.P.C. is an investigation under the orders of the Magistrate conducting inquiry under Section 202 Cr.P.C. and the object of such investigation is limited to finding out whether there is or is not sufficient ground to proceed against any accused. It is well established that investigation by the police can be directed under Section 200 and 202 Cr.P.C. in those cases only in which Magistrate is of the opinion that such investigation is necessary for the purpose of deciding whether or not there is sufficient ground for proceeding. In other words the investigation by the police under Section 202(1) Cr.P.C. can be ordered before issue of process against the accused and not after it. The direction by the learned Judicial Magistrate to the Dy. S.P. to seize stamps is, therefore, not a direction under Section 202(1) Cr.P.C. (17). For reasons mentioned above the direction given by the learned Judicial Magistrate to Dy. S.P., Ghatole, to seize stamp papers could not be given by the learned Judicial Magistrate and this direction amounts to abuse of the process of the Court and it deserves to be quashed. (18). A perusal of the papers submitted by the police with final report shows that there is medico-legal report of the injuries of the complainant. And this report shows that when the complainant was examined by the Doctor he had three simple injuries on his body. (18). A perusal of the papers submitted by the police with final report shows that there is medico-legal report of the injuries of the complainant. And this report shows that when the complainant was examined by the Doctor he had three simple injuries on his body. In the statements recorded under Sections 200 and 202 Cr.P.C. it has come on record that when the complainant went to the house of the accused he was given a beating and, therefore, prima facie offence under Section 323 IPC appears to have been made out by the facts alleged by the complainant and prima facie established by inquiry under Sections 200 and 202 Cr.P.C. It is well established that when a Magistrate take cognizance of offence on the basis of the complaint or police report or information received from any person other than police officer or on personal knowledge he takes cognizance of all the offences which are constituted by the facts brought to his notice, therefore, it must be said that the learned Judicial Magistrate had taken cognizance of the offence under Section 323 IPC when he commenced inquiry under Sections 200 and 202 Cr.P.C. and it must also be said that there is sufficient ground to proceed against the accused person for offence under Section 323 IPC. The impugned order dated 1.8.1995 may, therefore, be upheld so far issue of process on charge under Section 323 IPC is concerned. (19). For reasons mentioned above the petition is partly allowed. The impugned order dated 1.8.1995 so far as it purports to issue process against the accu- sed including petitioner on charge under Section 420 IPC and charge under Section 3(i)(x) SC/ST (Prevention of Atrocities), Act and the direction to the Dy. S.P., Ghatole, to seize stamp is concerned, deserves to be quashed and set aside and is hereby quashed and set aside but the above order is hereby maintained so far as issue of process against accused for offence under Section 323 IPC is concerned. The direction to issue warrant of arrest, therefore, deserves to be quashed and is hereby quashed and is substituted by a direction to issue summons to the accused because Section 323 IPC is bailable offence. (20). The petition is disposed of accordingly. A copy of this order along with record of the case be sent to the learned Judicial Magistrate for information and necessary action.