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2004 DIGILAW 706 (RAJ)

Luna Ram v. State of Rajasthan

2004-04-30

SUNIL KUMAR GARG

body2004
Honble GARG, J.–Both the aforesaid petitions are being decided by this common order as they are inter linked with each other. S.B. Cr. Revision Petition No. 276/2002 (2). This revision petition has been filed by the accused petitioners with the prayer that the order dated 15.3.2002 passed by the learned Judicial Magistrate, 1st Class, Sardarsahar in Criminal Case No. 145/2001 by which he read over the contents of the offence under Sections 353, 426, 186, 504 IPC to the accused petitioners and since the same were denied by the accused petitioners, the case was fixed for recording evidence, be quashed and set aside. (3). It arises in the following circumstances: A civil suit was filed by one Inder Chand against Godawari Devi for ejectment from the shop in question and during the pendency of that suit, the respondent No. 2 Suraj Bhan (hereinafter referred to as the complainant) was appointed as Commissioner by the Court on 13.5.1998 and in pursuance of the order of the Court, the complainant entered the shop of the accused petitioners for the purposes of local inspection and there was some dispute over inspection between the accused petitioners and the complainant and thereafter, the complainant made a complaint in the Court of Judicial Magistrate First Class, Sardarsahar on 14.5.1998 against the accused, petitioners and after sometime, the learned Judicial Magistrate sent the case to the police for registration of the case and upon this, the police registered FIR on 29.5.1998 against the accused petitioners. Against the order of sending the case to the police for registration of FIR, the accused petitioners approached this Court for quashing the FIR and this Court vide order dated 2.2.1999 directed that the Court should proceed under Section 200 or 202 Cr.P.C. Thereafter, vide order dated 3.4.2001, the learned Judicial Magistrate First Class Sardarsahar took cognizance against the accused petitioners for the offence under Sections 353, 186, 426, 504 IPC. Thereafter, the accused petitioners appeared before the Court and made application with the prayer that the order of taking cognizance dated 3.4.2001 be quashed and set aside, but the learned Judicial Magistrate, First Class, Sardarsahar through order dated 18.1.2002 rejected that application of the accused petitioners. Thereafter, against the order of taking cognizance dated 3.4.2001 and rejection of their application vide order dated 18.1.2002, the accused petitioners approached this Court by filing misc. petition under Section 482 Cr.P.C. being S.B. Cr. Thereafter, against the order of taking cognizance dated 3.4.2001 and rejection of their application vide order dated 18.1.2002, the accused petitioners approached this Court by filing misc. petition under Section 482 Cr.P.C. being S.B. Cr. Misc. Petition No. 242/2002 and when the same was pending, the learned Judicial Magistrate, First Class, Sardarsahar through order dated 15.3.2002 read over the offences under Sections 353, 426, 186, 504 IPC to the accused petitioners as no stay order was granted by this Court in the above misc. petition No. 242/2002. Aggrieved from the order dated 15.3.2002 passed by the learned Judicial Magistrate, First Class Sardarsahar, the accused petitioners have preferred this revision petition. (4). In this petition, the main contention of the learned counsel for the accused petitioners is that since the complainant Commissioner was acting beyond the scope of the order passed by the Civil Court, therefore, if any resistance was made by the accused petitioners, no offence was committed by them and apart from this, since the complainant Commissioner was officer of the Court, therefore, in absence of the report of the Court, therefore, in absence of the report of the Court, no cognizance could have been taken. Hence, the impugned order dated 15.3.2002 reading over the contents of the offence to the accused petitioners, cannot be sustained and liable to be quashed and set aside. (5). On the other hand, the learned Public Prosecutor and the learned counsel for the respondent No. 2 supported the impugned order. (6). I have heard the learned counsel for the accused petitioners, learned Public Prosecutor and the learned counsel for the respondent No. 2 and gone through the materials available on record. (7). There is no dispute on the point that the offences, which were read over to the accused petitioners through the impugned order, were to be tried as summons case. (8). The trial of summon cases by the Magistrate is dealt with in Chapter XX of the Code of Criminal Procedure commencing from Sections 251 to 259 Cr.P.C. (9). For convenience, Section 251 Cr.P.C. is quoted here: ``251. (8). The trial of summon cases by the Magistrate is dealt with in Chapter XX of the Code of Criminal Procedure commencing from Sections 251 to 259 Cr.P.C. (9). For convenience, Section 251 Cr.P.C. is quoted here: ``251. Substance of accusation to be stated.-When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make but it shall not be necessary to frame a formal charge. (10). It may be stated here that this section is correspond to Section 242 of the old Code of Criminal Procedure. (11). Under the old Code, after the question was put to the accused, the accused was to be asked if he had any cause to show as to why he should not be convicted. Now under the present Code the question would be whether the accused pleads guilty or has any defence to make. (12). The words `and he shall be asked whether he pleads guilty or has any defence to make are imperative in their significance. Further, the words `whether he pleads guilty or has any defence to make were substituted in the 1973 Code for the words `if he has any cause to show why he should not be convicted appearing in Section 242 of the old Code of 1898. (13). In a summon case when accused appears or brought before the Court, the particulars of the offence of which he is accused shall be stated to him. As a charge is not to be framed, it is incumbent upon the Magistrate to state all the necessary ingredients of the offence in the questions put to the accused. (14). In the present case, the offences for which cognizance was taken by the learned Judicial Magistrate against the accused petitioners, were to be tried as summons case and through impugned order, contents of the offences as provided in Section 251 Cr.P.C. have been read over to the accused petitioners and since the same have been denied by the accused petitioners, therefore, the case was fixed for recording evidence. Thus, now, the learned Judicial Magistrate has to record evidence and after recording evidence, he has to pass order of either acquittal or conviction as provided in Section 255 Cr.P.C. and before that there is no stage. (15). In my considered opinion, no illegality or irregularity has been committed by the learned Judicial Magistrate in reading over the contents of the offences to the accused petitioners and fixing the case for recording evidence on denying the same by the accused petitioners. The impugned order dated 15.3.2002 passed by the learned Judicial Magistrate is within the framework of the law and it does not suffer from any basic illegality or infirmity. (16). So far as the argument that proceedings should have been dropped is concerned, it may be stated here that for that, the accused petitioners have alternative remedy as provided in Section 258 Cr.P.C. where after considering the objections, for reasons to be recorded, the Magistrate can stop the proceedings at any stage without pronouncing any judgment. But, since there is no illegality in the impugned order of reading over contents of the offences to the accused petitioner, therefore, this Court would not like to interfere with the same. (17). For the reasons stated above, no interference is called for with the impugned order dated 15.3.2002 by which the learned Judicial Magistrate read over the contents of the offences to the accused petitioners and this revision petition deserves to be dismissed. S.B. Cr. Misc. Petition No. 242/2002 (18). This misc. petition under Section 482 Cr.P.C. has been filed by the accused petitioners with the prayer that the order dated 3.4.2001 by which the learned Judicial Magistrate First Class Sardarsahar took cognizance against the accused petitioners for the offence under Sections 353, 186, 426 and 504 IPC be quashed and set aside. (19). When the order of reading over the contents of the offences to the accused petitioners dated 15.3.2002 has been upheld by this Court in the above mentioned revision petition No. 276/2002, therefore, the order of taking cognizance against the accused petitioners stands automatically upheld and thus, this misc. petition has become infructuous and the same deserves to be dismissed as such. Accordingly, both the aforesaid petitions filed by the accused petitioners are dismissed.