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2004 DIGILAW 1827 (RAJ)

Birma Ram v. Ramdeen

2004-12-22

H.R.PANWAR

body2004
Judgment H.R. Panwar, J.-By this revision petition under Section 397 read with Section 401 CrPC, the petitioner has challenged the order dated 10.05.2003 passed by Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Merta (for short the revisional Court hereinafter) in Criminal Revision No. 02/2003 preferred by respondent No. 1 against the order dated 16.01.2003 passed by Judicial Magistrate, Ist Class, Makrana (for short the trial Court hereinafter) whereby the trial Court took cognizance of the offences punishable under Sections 341, 323, 296, IPC and Section 3 (1) (x) of SC/ST (Prevention of Atrocities) Act against the respondent No. 1. The revisional Court allowed the revision and set aside the order of the trial Court taking cognizance dated 16.01.2003.Aggrived by the Judgment and order of the revisional Court, the complainant has filed the present revision petition. 2. I have heard the learned Counsel and learned Counsel appearing for the respondents. Perused the Judgment and order impugned. 3. The trial Court vide the order dated 16.01.2003 took the cognizance of the offence punishable under Sections 341, 323, 296, IPC and Section 3 (1) (x) of SC/ST (Prevention of Atrocities) Act (for short the SC/ST Act hereinafter) and issued process against the respondent No. 1 Ramdeen. A complaint was filed by the petitioner before the trial Court against the respondent No. 1 for the offences noticed above which was sent to the police under Section 156 (3) CrPC for investigation. However, after investigation, the police filed a negative final report, against which, the petitioner filed a protest petition before the trial Court. The trial Court examined the petitioner and his witnesses, namely Komalsingh, Ramniwas, Vedprakash,Kishandan and Padmaram under Sections 200 and 202, CrPC. The trial Court did not agree with the conclusion arrived at by the police for filing negative final report and on perusal of the material on record as also the statement of the witnesses examined by the complainant, refused to accept the negative final report and took the cognizance of the offences noticed above against the respondent No. 1 vide order dated 16.01.2003. 4. 4. Aggrieved by the order taking cognizance dated 16.01.2003, the accused respondent No. 1 filed a revision petition before the revisional Court which came to be allowed on the ground that the trial Court has not made it clear as to whether it has taken the cognizance under Section 190 (1) (B) of CrPC or under Section 190 (1) (A) of CrPC. 5. The learned Counsel appearing for the respondent No. 1 has relied on a decision of this Court in Krishan Lal vs. State of Rajasthan reported in 1997 (Supp.) CrLR 611, wherein this Court held that the proceedings initiated on police report and proceedings initiated on complaint under Section 190 (1) (A) are separate although they both may be relating to the same matter. Acceptance of final report submitted by the police and dismissal of complaint by same order is not proper and the matter was remanded. 6. In Jagdish Ram vs. State of Rajasthan reported in AIR 2004 Supreme Court, 1734 Honble Supreme Court has held as under:-"In the instant case the order passed by the Magistrate taking cognizance is a well written order. The order not only refers to the statements recorded by the police during investigation which led to the filing of final report by the police and the statements of witnesses recorded by the Magistrate under Sections 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stag of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons." 7. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stag of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons." 7. In Jagdish Rams case (Supra) the complainant filed a complaint which was sent to the police under Section 156 (3) of CrPC for investigation. The case was registered and investigation was conducted. The Investigating Officer examined the complainant and other witnesses. After conclusion of the investigation, the police submitted a negative final report under Section 173 of the CrPC stating therein that the complaint was false. After filing of negative final report by the police, the complainant filed another complaint. The statements, of the witnesses and the complaint were recorded. The Additional Chief Judicial Magistrate found a prima facie case, took the cognizance of offences and issued process against the accused therein. The order issuing process was challenged by the accused in revision petition before the Sessions Judge which came to be dismissed. However, on a petition under Section 482 CrPC, the High Court set aside the order passed by the Additional Chief Judicial Magistrate as well as the order passed by the Sessions Judge and remanded the matter to the trial Court to proceed according to law. The Magistrate again reached to the same conclusion and took the cognizance. That order came to be challenged by the accused before High Court by filling another petition under Section 482 CrPC. The High Court again set aside the order and remanded the matter to the Additional Chief Judicial Magistrate noticing that while disagreeing with the negative final report, the Magistrate should have given some reasons for not accepting it. The matter was ultimately carried to the Honble Supreme Court and the Honble Supreme Court dismissed the appeal and held as quoted above. 8. The facts of the instant case are almost identical to that of the facts in Jagdish Ram (Supra). Taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At the stage of taking cognizance, the Magistrate has to be satisfied whether there is sufficient ground for proceeding, and not whether there is sufficient ground for conviction. Taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At the stage of taking cognizance, the Magistrate has to be satisfied whether there is sufficient ground for proceeding, and not whether there is sufficient ground for conviction. In the present case the Magistrate after having perused the material placed before it including the statement of the complainant and the witnesses produced by him, came to the conclusion that prima-facie there is sufficient ground for proceeding against respondent for the offences noticed above and took the cognizance of the offences. In the order taking cognizance if it has not been specifically mentioned as to whether the cognizance of offence is taken while exercising power under Section 190 (1) (A) or Section 190 (1) (B), the same cannot be a ground for setting aside the order taking cognizance. The Magistrate can take cognizance. 9. As stated above, the facts of the instant case are almost identical with that of the case in Jagdishram (Supra). In this view of the matter, the Judgment and order impugned cannot be sustained and is liable to be set aside. 10. Consequently, the revision petition is allowed. The Judgment and order impugned dated 10.05.2003 passed by the Special Judge SC/ST (Prevention of Atrocities) Case, Merta is hereby set aside and the order dated 16.01.2003 passed by the Judicial Magistrate, Ist Class, Makrana is restored. The stay petition stands disposed of .