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2001 DIGILAW 797 (RAJ)

Shankar Lal v. State of Rajasthan

2001-05-07

H.R.PANWAR

body2001
JUDGMENT 1. - The petitioners by this Misc. petition under section 482, Cr.PC. challenged the order dated 24.4.92 passed by the learned Munsif & Judicial Magistrate, Pilibanga whereby the learned Magistrate took cognizance for offences under Sections 447, 147, 148, 149, 323 & 336 I.P.C. and Section 27 of the Arms Act against the petitioners in Criminal Case No. 491/92. 2. The facts necessary for the decision of this petition are that the First Information Report was lodged at Police Station Pilibanga by complainant Pat Ram S/o Sukh Harsukh Ram by caste Bishnoi, Resident of Lakhasar wherein the present petitioners were named as assailants alongwith others. A Crime Report No. 184 dated 2.10.88 was registered at the Police Station Pilibanga. After investigation police filed a negative Final Report. The complainant filed the protest petition before the learned Magistrate, reiterating the allegations mentioned in the First Information Report. Complainant himself was examined as witness and one Jagdish was also examined as a eye-witness. In their statements under Section 200, Cr.P.C., both these witnesses supported the version given in the First Information Report. The learned Magistrate on the basis of material placed before him came to the conclusion that there is sufficient material to take the cognizance of the aforesaid offences against the petitioners and by the same order, refused to accept the negative final report submitted by the Police. 3. Being aggrieved by the order impugned dated 29.4.92 by which the learned Magistrate took the cognizance of the aforesaid offences against the petitioners, this application under Section 482, Cr.PC. has been filed by the petitioners. 4. I have heard the learned counsel for the petitioners and learned Public Prosecutor assisted by the learned counsel for the complainant Mr. B.N. Calla and perused the record. 5. It was contended by the learned counsel for the petitioners that while refusing to accept the negative final report submitted by the Police, learned Magistrate has not applied his judicial mind. He further submitted that no reason has been assigned for not accepting the negative final report submitted by the Police. He further contended that the learned Magistrate erred in taking cognizance beyond the period of limitation. He has relied on the judgment of this Court reported in Jagdish Chandra Soni v. State of Rajasthan reported in R.L.W. 1998(1) 404 and in Gulab Ram v. State of Rajasthan 1990(2) W.L.N. 388 . 6. He further contended that the learned Magistrate erred in taking cognizance beyond the period of limitation. He has relied on the judgment of this Court reported in Jagdish Chandra Soni v. State of Rajasthan reported in R.L.W. 1998(1) 404 and in Gulab Ram v. State of Rajasthan 1990(2) W.L.N. 388 . 6. Learned Public Prosecutor assisted by the learned counsel for the complainant vehemently opposed the contention raised by the learned counsel for the petitioners. They relied on the judgment of the Hon'ble Supreme Court in State of Himachal Pradesh v. Tara Dutt & Anr. reported in 2000 Cr.L.R. (SC) 156 and in Suresh Kumar v. State of Rajasthan reported in 1997 Cr.L.R. (Rajasthan) 749 . In the case of Gulab Ram (Supra) this Court observed that : "For the trial Court before taking cognizance, it is necessary for the trial court to consider the evidence on record in the suspected circumstances, if any, and then to form an opinion." 7. In Jagdish Chandra Soni's case (Supra), this Court held that the record which has been submitted by the Police, is a material placed on record and it is the duty of the court to consider that record and then to arrive at its own conclusion, whether in such a case, the process should be issued against the accused .or not. 8. Obviously, in the instant case, the learned Magistrate has taken into account the First Information Report and the statement of the witnesses recorded, which supports the version given in the First Information Report and after having taken into account the material on record; found that there is a sufficient ground to take cognizance of the offences against the petitioners and rejected the final report submitted by the Police. 9. From the reading of the order impugned, it cannon be said that the learned Magistrate has not applied his judicial mind, before taking cognizance. 10. The next contention raised by the learned counsel for the petitioner is that the order impugned taking cognizance is barred by limitation as envisaged under Section 468, Cr.PC. Occurrence is said to have been taken place on 2.10.88 at 10 PM and the offences, for which the learned Magistrate has taken the cognizance includes the offence under Section 27 of the Arms Act. The learned Magistrate took cognizance of the offences on 24.4.92 by order impugned within a period of three years. Occurrence is said to have been taken place on 2.10.88 at 10 PM and the offences, for which the learned Magistrate has taken the cognizance includes the offence under Section 27 of the Arms Act. The learned Magistrate took cognizance of the offences on 24.4.92 by order impugned within a period of three years. Section 468(c) provides period of limitation of three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Since the offence under Section 27 of the Arms Act is punishable for more than three years and therefore, it cannot be said that order taking cognizance is barred by limitation. In Suresh Kumar's case (Supra), this Court held that "for the purpose of this Section, period of limitation, relates to the offences, it may be tried together, shall be determined with reference to the offences which is punishable with the more severe punishment or as the case may be, the most severe punishment." 11. In view of the judgment of Suresh Kumar's case (Supra), it is more than clear that the order taking cognizance by the learned Magistrate is within a period of limitation or can (sic not) be said to be barred by limitation. 12. In State of Bihar v. Rajendra Agarwal reported in 1996 SCC (Cri) 628 , the Hon'ble Supreme Court held that the inherent power of the Court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of process of the Court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to sift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out. 13. In the instant case, from the First Information Report and the statement of the witnesses recorded by the investigating agency and by the trial court, it cannot be said that these documents do not constitute the offences alleged. 14. 13. In the instant case, from the First Information Report and the statement of the witnesses recorded by the investigating agency and by the trial court, it cannot be said that these documents do not constitute the offences alleged. 14. I have perused the record of the trial court and statements of the witnesses recorded by the trial Magistrate i.e. C.W. 1 Pat Ram and C.W. 2 Jagdish. There is an ample evidence to take cognizance. More-so, the First Information Report clearly discloses the cognizable offence alleged to have been committed by the person named therein including the petitioners. I am of the considered opinion that order impugned taking cognizance does not suffer from any infirmity or illegality therefore, calls for no interference. 15. In view of the above discussion, i find no substance in this Misc. petition and is hereby dismissed.Petition dismissed. *******