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2004 DIGILAW 689 (RAJ)

Sugan Chand v. The State of Rajasthan

2004-04-28

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - This petition under Section 482 Cr.P.C. has been filed by the petitioner (presently posted as SHO of the Police Station, Mena Road, Dist. Nagaur) against the order dated 25.11.1997 passed by the learned Judicial Magistrate, Nawa in Criminal Complaint No. 230/1997 by which the learned Magistrate took cognizance against the accused petitioner for offences under Section 330 I.P.C. and Section 3(8) of the SC/ST (Prevention of Atrocities) Act, 1989. 2. It arises in the following circumstances : (i) That on 17.5.97 complainant-respondent No. 2 lodged a written complaint before the Judicial Magistrate, Nawa against the two persons, namely Dr. Alok and his servant stating that on 16.4.1997, the complainant (respondent No. 2) received some injuries on his chest and therefore, he went to Dr. Alok on 17.4.1997 for the purpose of getting treatment and Rs. 64 were paid to Dr. Alok by Vijay Singh which was also with the complainant. (ii) Further case as put forward by the complainant in his complaint is that on 18.4.1997 when he went to the clinic of Dr. Alok a dispute arose over the amount of fees which was to be paid to Dr. Alok and according to the complainant-respondent No. 2, he was beaten by Dr. Alok and his servant and as a result of which apart from him, Vijay Singh also received some injuries. When Vijay Singh tried to intervene, accused Dr. Alok and his servant both abused there also. (iii) Further case as put forward in the complaint by the complainant (respondent No. 2) is that when they were returning, SHO arrested them under Section 107, 116 and 151 Cr.P.C. and they were released on 19.5.1997 etc. etc. (iv) On that complaint, statements of th9 complainant and his witnesses were recorded under Section 200 and 202 Cr.P.C. and thereafter through impugned order dated 25.11.1997, the learned Magistrate took cognizance against Dr. Alok for offence under Section 323 I.P.C. and Section 3(x) of the SC and ST (Prevention of Atrocities) Act, 1989 and apart from that he also took cognizance against the petitioner for offences under Section 330 I.PC. and Section 3(8) of the SC and ST (Prevention of Atrocities) Act, 1989. (v) Being aggrieved by the order dated 25.11.97, the petitioner has filed this misc. petition. 3. In this misc. and Section 3(8) of the SC and ST (Prevention of Atrocities) Act, 1989. (v) Being aggrieved by the order dated 25.11.97, the petitioner has filed this misc. petition. 3. In this misc. petition the main case of the learned counsel for the petitioner is that the order dated 25.11.97 passed by the learned Judicial Magistrate is without jurisdiction as the complaint was filed by respondent No. 2 only against Dr. Alok and his servant and not against the present accused petitioner and since the accused petitioner at the relevant time was SHO, Police Station Nawa, he had right to arrest the respondent No. 2 under Sections 107, 116 and 151 Cr.PC. as he was on duty and therefore, he had also protection under Section 197 Cr.P.C. and thus, even from the facts stated in the complaint no case for offence under Section 330 I.P.C. and Section 3(8) of the SC and ST (Prevention of Atrocities) Act, 1989 is disclosed against the accused petitioner and hence the impugned order dated 25.11.1997 qua the petitioner be quashed and set aside. 4. On the other hand, the learned counsel for the respondent No. 1 as well as learned P.P. has supported the impugned order dated 25.11.97 and submitted that the same is based on correct appreciation of evidence available on record and hence does not require any interference by this Court. 5. Heard. 6. In my considered opinion, the impugned order dated 25.11.1997 cannot be sustained qua the petitioner. There is no dispute on the point that on the relevant day, the present petitioner was SHO of the Police Station, Nawa. 7. There is also no dispute on the point that he has power to arrest anybody under Section 107, 116 and 151 Cr.PC. and if he has arrested the respondent No. 2 under Sections 107, 116 and 151 Cr.P.C., it cannot be said that he was not discharging the official duty and when this being the position, protection under Section 197 Cr.P.C. was available to him. Apart from this no complaint was made by the complainant against the petitioner and simply on the basis of statements of the complainant and his witnesses recorded under Section 200 and 202 Cr.PC. Apart from this no complaint was made by the complainant against the petitioner and simply on the basis of statements of the complainant and his witnesses recorded under Section 200 and 202 Cr.PC. cognizance was taken against the petitioner and this act on the part of the learned Magistrate reflects that the learned Magistrate has exceeded its jurisdiction in doing so and the impugned order dated 25.11.1997 is abuse of process of Court. 8. That apart, even ingredients of Section 330 I.P.C. are not available in the case of the petitioner as for that voluntary hurt should have been caused for the purpose of extorting confession or information from any person and this aspect is totally lacking in the present case and therefore from this point of view also, the impugned order dated 25.11.1997, passed by the learned Judicial Magistrate suffers from basic infirmity of illegality and is liable to be set aside and this misc. petition deserves to be allowed.For the reasons mentioned above, the present misc. petition is allowed and the order, dated 25.11.97 passed by the learned Judicial Magistrate. Nawa is quashed and set aside qua the petitioner.Petition allowed. *******