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1999 DIGILAW 1312 (RAJ)

Badri v. State of Rajasthan

1999-10-25

M.A.A.KHAN

body1999
Honble KHAN, J.–This petition U/s. 482 Cr. P.C. challenges the order dated 24.11.95 whereby the learned Judicial Magistrate Dudu dismissed the protest petition/complaint of the petitioner and accepted the negative report submitted by the police U/s. 170/173 Cr. P.C. in FIR No. 114/85 U/Ss. 302/120-B IPC, P.S. Phagi. Since the impugned order was an order revisable U/s. 397 Cr. P.C. the petition was treated as a revision application U/s. 397 Cr. P.C. and is being disposed of as such. (2). The learned counsel for the parties were heard at length and the relevant material including the police report and the documents submitted therewith and the statements of the complainant and his witnesses recorded by the learned Magistrate U/s. 200 & 202 Cr. P.C. were gone through. (3). The kernal of dispute between the parties is their respective claims to the possession of some agricultural land situate at village Mandaliya under Tehsil Phagi, Distt. Jaipur. The case of the petitioner in the F.I.R. lodged by him as also in the complaint subsequently filed by him, was that his family of which Bholu deceased also was a member, had 192 Bighas of land out of which 102 Bighas had been obtained under an agreement for sale executed by one Bhairoo Narain R/o Jaipur on 19.7.1964 in favour of Badri (Complainant-informant) Nanoo Ram, Sheo Narain and Bholu (deceased), 22 Bighas, of which Nathu Singh the predecessor of Respondent Nos. 2 to 5 were the Jagirdars but the same was being cultivated by the forefathers of the complainant, had been inherited by complainants family as ancestral property, 10 Bighas was also the ancestral property and the remaining 30 Bighas had been allegedly purchased by Bholu deceased; that the aforesaid Bhairoo Narain died sometimes in the year 1970; that Respondent Nos. 5 to 13 purchased the aforesaid 102 Bighas of land, which was in possession of petitioners family, from the heirs of Bhairoo Narain aforesaid under a registered sale-deed and this act of the said respondents opened upon the parties gates for litigation; that the petitioners family filed a suit for injunction in a Revenue Court against the respondents and such suit though terminated in a compromise yet it could not terminate the strained relations between the parties outside the court and the criminal litigation again broke out between them in the year 1984 and FIR Nos. 154/84, 170/84, 179/84, 17/85, 39/85, 66/85 came to be registered over the years; that on 13.7.85 when Bholu deceased was returning to his house from the Dhani of Ram Karan Meena and happened to pass by the house of Kalyan Singh (since deceased) he was shot dead by Kalyan Singh. (4). In his complaint the petitioner accused all the 20 respondents (Respondents Nos. 2 to 21) of having conspired with Kalyan Singh aforesaid to cause death of Bholu deceased. This complaint was forwarded u/S. 156(3) Cr. P.C. by the learned Magistrate to the police for investigation and FIR No. 114/85 u/S. 302 IPC was registered thereupon. (5). On investigation of the case the police arrived at the conclusion that it was the individual act of Kalyan Singh to have shot dead Bholu and that the present respondent Nos. 2 to 21 had hetched-up no conspiracy for causing death of Bholu and that since Kalyan Singh had already been murdered there was no alternative but to submit a Final Report in the matter. Accordingly the police submitted a negative report u/S. 169/173 Cr. P.C. (No. 87/85) dt. 20.9.85) in the matter to the concerned Magistrate. (6). After having considered the negative report of the police and the document submitted therewith and also after having considered the statements of the petitioner and his witnesses recorded by him U/s. 200 and 202 Cr. P.C., the learned Magistrate found no sufficient grounds to summon Respondent Nos. 2 to 21 as accused therein. He, therefore, dismissed petitioners protest petition/complaint and accepted the negative police report vide his order dated 11.5.1987. (7). Aggrieved by the Magistrates order dated 11.5.87 the petitioner filed Revision Application No. 17/92 before the learned Sessions Judge, who, vide his order dated 22.9.93, setting aside Magistrates order dt. 11.5.87 on the ground that all the witnesses of the petitioner ought to have been examined U/s. 202 Cr. P.C., directed further enquiry U/s. 398 Cr. P.C. in the matter. In compliance of such orders of the Revisional Court the learned Magistrate conducted further enquiry, recorded all the evidence of the petitioner and vide his impugned order dated 24.11.95, again dismissed the complaint of the petitioner. (8). P.C., directed further enquiry U/s. 398 Cr. P.C. in the matter. In compliance of such orders of the Revisional Court the learned Magistrate conducted further enquiry, recorded all the evidence of the petitioner and vide his impugned order dated 24.11.95, again dismissed the complaint of the petitioner. (8). Relying heavily on the principles laid down in the cases of Vadilal Panchal vs. Dattarayya (1), Chandra Dev vs. Prakash Chandra (2), Davendra Nath vs. State of West Bengal (3), Kewal Krishna vs. Suraj Bhan (4) and Ballarpur Industries Ltd. vs. Bhikam Chand (5) it was vehemently urged that the learned Magistrate grossly erred in law in not confining himself to the well settled proposition of law that at the stage of Secs. 203 & 204 Cr. P.C. he was simply to see as to whether prima-faice evidence for taking cognizance of the offence U/s. 120-B r.w. Sec. 302 IPC and summoning respondents No. 2 to 21 as accused thereunder had been brought on the record of the case; and that at that stage he was not required examine the evidence meticulously and in great depth. It was submitted that the learned Magistrate exceeded his jurisdiction and, therefore, the impugned order was required to be vacated and set side. In my considered opinion there is no merit in the arguments advanced by the learned counsel for the petitioner. (9). In so far as the principles enunciated in the cited cases, referred to above, are concerned there is and cannot be any dispute thereto. It is well settled in law that at the stage of Sec. 200 and 202 Cr. P.C. the Magistrate is not to weigh the evidence meticulously in order to find-out if ``there is sufficient ground for proceeding against the accused. At that stage the standard to be adopted by the Magistrate in scrutining the evidence is not the same as the one which is to be kept in view at the stage of framing charges or holding the accused guilty of the offence. (Kewal Krishnas case). At that stage the standard to be adopted by the Magistrate in scrutining the evidence is not the same as the one which is to be kept in view at the stage of framing charges or holding the accused guilty of the offence. (Kewal Krishnas case). What the Magistrate has to determine at the stage of issue of process is not the correctness or the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case only on the assumption that what is stated can be true unless the prosecution allegations are so fantastic that they cannot reasonably be held to be true (Devender Naths case). (10). In the case of Vadilal Panchal (Supra) the Apex Court, after having examined the scheme underlying Secs. 200, 202 and 203 Cr. P.C., observed in para 9 of the report as under: ``The general scheme of the aforesaid sections is quite clear. Section 200 says inter-alia what a Magistrate taking cognizance of an offence on complaint shall do on receipt of such a complaint. Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the Section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The Section does not say that a regular trial for adjudging the guilty or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on that Section 203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding he may dismiss the complaint. Section 204 says that if in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process. (11). In the subsequent decision of Chander Deo (Supra) the principles laid down in Vadi Lal Panchals case were reiterated and followed. (12). At the stage of issuing process U/s. 204 Cr. P.C. the Magistrate is not required to weigh and sift the evidence recorded by him U/Secs. 200 and 202 Cr. P.C. in a way in which he is required to do at the stage of framing charges or holding the accused guilty. At that stage he is simply to examine the evidence with a view to satisfy himself on the point as to whether there was sufficient ground for proceeding against the accused. But that does not mean that the Magistrate is bound by what has been stated by the complainant in his statement U/s. 200 and his witnesses U/s. 202 Cr.P.C. He is required to apply his judicial mind to the material on which he has to make a judgment with regard to the issue of process U/s. 204 Cr. P.C. against the accused. The material to be so considered by him may well consist of the negative report of the police alongwith the material submitted therewith as also the statement of the complainant U/s. 200 and of his witnesses U/s. 202 Cr. P.C. He has to make his judgment on the consideration of all the material before him. P.C. against the accused. The material to be so considered by him may well consist of the negative report of the police alongwith the material submitted therewith as also the statement of the complainant U/s. 200 and of his witnesses U/s. 202 Cr. P.C. He has to make his judgment on the consideration of all the material before him. If he does not find sufficient grounds for proceeding against the accused, then he may be justified in dismissing the complaint U/s. 203 Cr. P.C. Of course no hard and fast rule, of universal application can be laid down in that behalf. (13). In the instant case there was no doubt that the evidence of long enimity between the parties was there before the learned Magistrate. But with regard to the death of Bholu deceased by violence petitioners own version in that behalf in para 15 of the complaint was in the following words:- ^^;g fd fnukad 12-7-85 dks Hkksyw fdlh rjg va/ksjs xkao esa fNirk gqvk vk;k vkSj ?kj esa ckrphr djds fQj Mj ls ikl gh jkedj.k eh.kk dh <k.kh esa viuh lqj{kk ds fy;s pyk x;k lqcg irk ugha D;ksa og xkao dh rjQ vk;k vkSj fdku tkV ds ikl cSBdj fpye ih vkSj ?kj dh rjQ vkus yxk rks n;ky o Hkwjk us Hkksyw dks ns[k fy;k vkSj mij tkdj egy esa [kcj dh nh Hkksyw tSls gh egy ds lkeus vk;k rks dY;k.kflag us Hkksyw dks xksyh ekj nh ftlls og ej x;kA izkFkhZ }kjk fjiksVZ djus ij QkSr nsgh vfHk;qDr dY;k.kflag dh iqfyl }kjk ,Q-vkj-isk dj nh x;h vkSj vU; eqfYteku ds f[kykQ dksbZ dk;Zokgh ugha dh x;hA** (14). Even in the FIR No. 114/85 dated 13.7.85 the petitioner had simply reported that it was Kalyan Singh deceased only who had fired at Bholu deceased and that on being chased by the petitioner and other witnesses Kalyan Singh had run away towards the Bada Kunwan (Well). In the course of the investigation the police had thoroughly examined the merits in the grievance of the petitioner and had come to the conclusion that Kalyan Singh only was the killer of Bholu deceased. No case of any sort of conspiracy had either been reported to the police in FIR No. 114/85 nor was any found by the police in the course of investigation. Even on conducting enquiry by the learned Magistrate U/s. 200 and 202 Cr. No case of any sort of conspiracy had either been reported to the police in FIR No. 114/85 nor was any found by the police in the course of investigation. Even on conducting enquiry by the learned Magistrate U/s. 200 and 202 Cr. P.C. no different conclusion could be drawn by him after having gone through the statement of Badri petitioner, Lal, Manoo Ram Kishan Lal and Dr. Om Prakash Sharma. It was after the murder of the killer Kalyan Singh himself that accusations of conspiracy in the murder of Bholu Ram were made against Respondent No.2 to 21. The evidence in that behalf comprised of the wild allegations made by the petitioner on the basis of self drawn conclusions in view of the long standing strained relations and enmity between the parties. No legal evidence in that behalf was brought on the record of the Magistrate. In making his judgment with regard to the summoning of accused as per Sec. 204 Cr. P.C. the Magistrate was required to take into account the negative report of the police and the documents submitted therewith. After having considered all such material, which was gone through by me also, the learned Magistrate was fully justified in dismissing petitioners complaint U/s. 203 Cr. P.C. The impugned order is well reasoned and well written and stands the revisional scrutiny of this Court. I, therefore, find no force in this petition/application and would dismiss it as such. (15). The petition/application is dismissed.