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2002 DIGILAW 550 (MP)

NARAYAN SINGH s/o NIRBHAY SINGH v. STATE OF M. P.

2002-05-16

S.L.KOCHAR

body2002
ORDER : By this order Misc. Criminal Case No. 670/02 is also disposed of. 2. Both the aforesaid petitions have been filed by the applicants under section 482 of the Code of Criminal Procedure (for short, 'the Code') against the judgment dated 28-10-2002 delivered by the learned Judicial Magistrate, First Class, Hatod, District Indore in Criminal Case No. 29/1997 thereby directing the Police of P. S. Hatod to register the offence under sections 182 and 219 of the Indian Penal Code against applicant Narayansingh and file a charge sheet before the Competent Court and also ordered for sending copy of the judgment to Superintendent of Police, Dewas for taking suitable action against applicant Jaigopal in Misc. Cri. Case No. 670/02 holding that this applicant has submitted false report against accused Narendra having favoured complainant Narayansingh. 3. Briefly stated the facts as unfolded before the Court below was that on 22-1-1997 in the evening at 5.00 p.m. applicant Narayansingh/complainant while parking his tractor No. MP. 09/M/3894 in front of his house went to his irrigated field. After returning from the field he saw that this tractor was not standing at the place where the same was parked. On enquiry and search, he collected the information that accused Narendra had taken the tractor without his consent and will and thereby committed offence of theft. Applicant Narayansingh submitted written report to this effect in police station Hatod. On this report, Police Hatod registered crime No. 16/1997 under section 379, Indian Penal Code. After preparing the map and seizure memo of tractor, accused Narendra, NA No. 2 was arrested and the tractor was seized. After usual investigation, chargesheet was filed against NA No. 2 Narendra by head constable after lodging the FIR. The FIR was written by the applicant ASI, Jaigopal Choukse (Applicant in MCrC No. 670/02). Accused denied the charges, he did not adduce any witness in defence. 4. The prosecution has examined as many as eight witnesses to prove its case. Complainant/applicant Narayansingh (P.W. 1) has deposed that on the date of the incident i.e. 22-1-1997, he was in the field and the tractor was standing in front of his house. When he returned to his house for taking meal he saw that the tractor was not available where he parked it. He enquired his wife, and one Padamsingh who told him that the Non-applicant/accused Narendra had taken the tractor. When he returned to his house for taking meal he saw that the tractor was not available where he parked it. He enquired his wife, and one Padamsingh who told him that the Non-applicant/accused Narendra had taken the tractor. Thereafter, the same day i.e. 22-1-1997 in the night at about 11.45 p.m. he lodged report, Ex. P/1, in the police station, which was written by ASI Jaigopal. 5. The prosecution has examined Aamna Bi (PW 6). According to her, the Narendra was driving the tractor on 22-1-1997 at about 10 a.m. and dashed her causing injuries to her both legs. The accident occurred because of rash and negligent driving of the accused Narendra. This accident was reported on 23-1-1997 at 10.15 a.m. in the same police station, Hatod. The police also registered the offence under section 279, 337 of the Indian Penal Code against accused Narendra. During the course of arguments, it has been stated at the bar and the same has not been denied by the State that this witness Aamna Bi has received claim of Rs. 67,662/-. In both the cases, accused Narendra has been acquitted. 6. Learned trial Court, while discussing the evidence as mentioned in paragraph 10 that at one place it is stated by complainant Narayansingh/applicant that the tractor was stolen by applicant Narendra and at another place Aamna Bi (PW 6) and Aarif (PW 4) have stated that by the same tractor, applicant Narendra committed an accident causing grievous injuries to Aamna Bi. This tractor was seized standing in front of the house of one Prabhu Kalal. The Investigating officer i.e. head constable Gangaram has not been examined by the prosecution to prove the seizure of the tractor. Statement of the accused Narendra was recorded under section 27 of the Evidence Act. The Investigating Officer has not sezied licence of the driver of the tractor. Because of non-examination of the investigating officer, seizure of tractor from exclusive possession of the applicant Narendra was not proved. No body has seen the applicant taking the tractor from the place where it was parked. Therefore, no case of theft is made out against him. 7. Learned trial Court has come to the conclusion on the basis of the statement of Aamna Bi (PW 6) and Aarif (PW 4) that applicant Narayansingh was knowing about the accident committed by the accused Narendra by his tractor. Therefore, no case of theft is made out against him. 7. Learned trial Court has come to the conclusion on the basis of the statement of Aamna Bi (PW 6) and Aarif (PW 4) that applicant Narayansingh was knowing about the accident committed by the accused Narendra by his tractor. On the basis of this evidence, the learned trial Court jumped to the conclusion that applicant Narayansingh has lodged false report and the applicant ASI Jaigopal has written false report about theft. Therefore, learned trial Court directed for initiation of the proceedings under section 182, 211 of the Indian Penal Code against the applicant Narayansingh and for taking suitable action against ASI Jaigopal by the Department. Both the directions have been challenged in the aforesaid petitions by the applicant Narayansingh and Jaigopal. 8. The contention of the counsel for the applicant Narayansingh is that he lodged report of theft against Narendra and there is absolutely no material on record that he lodged false report because Narendra was not at all related with the applicant and the prosecution has not proved seizure memo and other important evidence against Narendra. Applicant cannot be held responsible for the lapses on the part of the prosecution. Learned trial Court has no material to come to the conclusion that because the tractor was involved in the accident, the applicant lodged false report of theft of the tractor. The report of theft of tractor was first in time by the applicant then the report of accident. The report of the accident was lodged on 23-1-1997 at 10.a.m. There is delay of about 24 hours. 9. Learned counsel for the applicant placed reliance on a judgment reported in Manish Dixit and Ors. vs. Devender K. Sharma, AIR 2001 SC 92, wherein the Apex Court has held as under :- "Even those apart, this Court has repeatedly cautioned that before any castigating remarks are made by the Court against any person, particularly when such remarks could ensure serious consequences on the future career of the person concerned he should have been given an opportunity of being heard in the matter in respect of proposed remarks or strictures. Such an opportunity is the basic requirement, for otherwise the offending remarks would be in violation of the principles of natural justice. Such an opportunity is the basic requirement, for otherwise the offending remarks would be in violation of the principles of natural justice. In this case, such an opportunity was not given to PW 30 (Devendra Kumar Sharma) (State of UP vs. Mohd. Naim, (1964) 2 SCR 363 : AIR 1964 SC 703 : 1964 (1) Cr LJ 549; Ch. Jage Ram vs. Hans Raj Midha, 1972 Cr LJ 768; R. K. Lakshamanan vs. A. K. Srinivasan, (1975) 2 SCC 466 = AIR 1975 SC 1741 : 1975 CrLJ 545 ; Niranjan Patnaik vs. Shashibhushan Kar, (1986) 2 SCC 569 : AIR 1986 SC 819 : 1986 Cr LJ 911; State of Karnataka vs. Registrar General, 2000 (5) Scale 504 : 2000 AIR SCW 2794 : AIR 2000 SC 2626 . It is apposite in this context to extract the following observations made by this Court in Dr. Dilip Kumar Deka vs. State of Assam, (1996) 6 SCC 234 : 1996 AIR SCW 4046 pg. 4048 : We are surprised to find that in spite of the above catena of decisions of this Court, the learned Judge did not, before making the remarks, give any opportunity to the appellants, who were admittedly not parties to the revision petition to defend themselves. It cannot be gain said that the nature of remarks the learned Judge has made, has cast a serious aspersion on the appellants affecting their character and reputation and may ultimately affect their carrer also. Condemnation of the appellants without giving them an opportunity of being heard was complete negation of the fundamental principle of natural justice. 10. The contention of the learned counsel for another applicant ASI Jaigopal is that he has simply written FIR which he ought to have written in view of the section 154 of the Code because the written report submitted by the complainant. Narayansingh was disclosing cognizable offence. Apart from ascribe of this report, he has not done anything in the investigation. The whole investigation was done by head constable, who has not been examined by the prosecution to prove relevant and important document, for which the applicant cannot be penalized. 11. Narayansingh was disclosing cognizable offence. Apart from ascribe of this report, he has not done anything in the investigation. The whole investigation was done by head constable, who has not been examined by the prosecution to prove relevant and important document, for which the applicant cannot be penalized. 11. Having considered the submissions of the learned counsel for the applicant and after hearing non-applicants, this Court is of the opinion that no case is made out for holding the applicant Narayansingh guilty for lodging of false report of theft and rendering him liable for prosecution under section 182, 211, Indian Penal Code. Similarly, applicant Jaigopal ASI could not be held responsible for writing false report. It was his duty to take down the report as per the Provisions of section 154 of the Code. Apart from this writing of FIR, he has not done any investigation, therefore, it cannot be said that he has written the FIR knowing well that no such incident had occurred and the complainant was submitting a false report. This has also been strengthen by the fact that the report of the accident was lodged on 23-1-1997 at 10.15 a.m. Therefore, by any stretch of imagination, it cannot be said that applicant Jaigopal ASI was knowing that the accident had taken place by the said tractor for which report of theft was being lodged on 22-1-1997 by the applicant, Narayansingh to save himself. 12. Learned/trial Court before coming to the aforesaid conclusion and issuance of direction, should have called head constable Gangaram and examine him by invoking provisions of section 311 of the Code and also by exercising Provisions under section 165 of the Evidence Act for digging out a truth from the witnesses. Without exercising these two important Provisions for just decision, the trial Court has erred in holding that false report was lodged by applicant Naryansingh and the same was written by ASI Jaigopal. 13. For the foregoing discussion, it emerged that the impugned order passed by the trial Court is not sustainable in law. Accordingly the same is set aside.