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2004 DIGILAW 743 (RAJ)

Bajrang Singh v. State of Rajasthan

2004-05-10

N.N.MATHUR

body2004
JUDGMENT 1. - By way of instant petition under section 482 Cr.P.C., petitioners seek direction to quash the order of the learned Judicial Magistrate, First Class, Ladnu dated 26.10.1993 taking cognizance against them for the offence under sections 147, 452, 323, 325, 379, 365 and 149 Indian Penal Code. 2. Briefly stated the facts giving rise to the instant petition are that on 24.8.1993, second respondent-Jassa Ram filed a complaint in the Court of learned MJM, Ladnu stating inter alia that on 11.6.1993, accused-Bajrang Singh entered into his house in drunken condition and started abusing him. He sent his son Hari Ram to call Jaman Singh, Roop Giri, Raj Singh and Ramdev. The quarrel ensued between him and Bajrang Singh. He tied accused-Bajrangsingh with a rope. Accused-Bajrang Singh was uttering nonsense about his wife. The villagers got Bajrang Singh released after giving him an assurance that he would not repeat such incident in future. On 12.6.1993, accused persons viz., Bajrang Singh, Radhey Shyam, Gopal Singh, Mahaveer, Datar Singh, Richhpal Singh, Parmeshwar Singh, Vikram Singh, Lal Singh, Shanker Dan, Goru Ram, Jetha Ram and Narain armed with "lathis" and "pharsis" attacked on complainant's house. The complainant got the entire family locked from inside the house. The accused persons entered into by damaging their house. Accused- Bajrang Singh mounted attack on him. Other accused persons also attacked on him, his wife and sons Hari Ram and Omprakash. The accused persons threw his wife on the ground and took away ornament viz., "Paajeb" weighing 11 tolas'. They tied the hands of complainant and his wife. Then, the complainant and his wife were paraded in the entire village. His son Omprakash was also kidnapped by the accused persons. On this information, police registered a case and proceeded with investigation. The police filed a charge-sheet against,the accused-Bajrang Singh, Radhey Shyam, Gopal Singh and Mahaveer for the offence under sections 448, 325, 323 and 504 Indian Penal Code. It was further averred that Omprakash was kept under detention for three days. He was released by accused- Mukna Ram and Hinglaj Dan on 14.6.1993 saying that the matter has been compromised with the complainant. It was further averred that the complainant remained in the hospital for about 13 days. It was further averred that Omprakash was kept under detention for three days. He was released by accused- Mukna Ram and Hinglaj Dan on 14.6.1993 saying that the matter has been compromised with the complainant. It was further averred that the complainant remained in the hospital for about 13 days. On the basis of the said complaint, the learned Magistrate by order dated 26.10.1993 took cognizance against the accused-Bajrang Singh, Radhey Shyam, Gopal Singh, Mahaveer, Datar Singh, Richhpal Singh, Parmeshwar Singh, Vikram Singh, Lal Singh, Shanker Dan, Goru Ram, Jetha Ram and Narain for the offence under sections 147, 452, 323, 325, 379, 365 and 149 Indian Penal Code. As against Mukna Ram and Hinglaj Dan, cognizance was taken for the offence under section 365 r/w Section 109 Indian Penal Code. 3. From the above, it emerges that on FIR being filed by the second respondent, the police after investigation, took cognizance against four accused viz., Bajrang Singh, Radhey Shyam, Gopal Singh and Mahaveer for the offence under sections 448, 325, 323 and 504 Indian Penal Code. After filing of the charge-sheet, a complaint was filed on which cognizance has been taken against 15 accused persons, including aforesaid four accused persons. A serious question, therefore, arises whether a process may be re-issued against a person against whom cognizance has already been taken on the same facts and as to whether the complainant once having not exercised the right of filing the protest petition, can file a complaint and whether on such complaint, cognizance can be taken against other accused persons. 4. It is settled position of law that cognizance for an offence can be taken by a competent Court in respect of the same offence only once. Other accused persons can be added as accused under the provisions of Section 319 of the Code of Criminal Procedure. On similar facts, the Apex Court in Jamuna Singh v. Bhadai Shah reported in 1964 (2) Cr.L.J. 468 , held thus : "Cognizance having already been taken by the Magistrate before he made the order, there was no scope of cognizance being taken afresh of the same offence after the police officer's report was received. There was thus no escape from the conclusion that the case was instituted on private person's complaint and not on the police report submitted later by the Police Sub-Inspector." 5. There was thus no escape from the conclusion that the case was instituted on private person's complaint and not on the police report submitted later by the Police Sub-Inspector." 5. In view of the aforesaid, we are of the view that the learned Magistrate has acted without jurisdiction in taking cognizance against the present petitioners by order dated 26.10.1993, when he had already taken cognizance against the four accused viz., Bajrang Singh, Radhey Shyam, Gopal Singh and Mahaveer for the offence under sections 448, 325, 323 and 504 Indian Penal Code. 6. Consequently, the Misc. Petition is allowed. The order of the learned Judicial Magistrate dated 26.10.1993 taking cognizance against the petitioners is quashed and set aside. It is made clear that this order will not affect the cognizance already taken against four accused viz., Bajrang Singh, Radhey Shyam, Gopal Singh and Mahaveer for the offence under sections 448, 325, 323 and 504 Indian Penal Code.Petition allowed. *******