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2004 DIGILAW 937 (JHR)

DEEPAK KUMAR LAL v. STATE

2004-09-14

AMARESHWAR SAHAY

body2004
Judgment : ( 1 ) HEARD Mr. S. B. Gadodia, learned Sr. Counsel appearing for the petitioner and the learned counsel for the opposite parties. ( 2 ) THE petitioner has challenged the order dated 18/07/2003, whereby the Chief judicial Magistrate, Palamau at Daltonganj took cognizance of the offence under sections 323, 341, 504, 376 and 511 of the i. P. C. and under section 3 (X) (XI) of the scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. ( 3 ) THE First Information report being sadar (Town) Daltonganj P. S. Case No. 260/2002 was registered against the petitioner, on the information lodged by O. P. No. 2 smita Megumi Minz. It was alleged that O. P. No. 2/ informant was working as Principal of Rotary School (Anand Shankar) for the last one and half years. The school was being run by the Rotary Club. In July, 2002 the petitioner Deepak Kumar Lal was elected as a President of the Rotary Club and since, thereafter his attitude towards the informant was not good. On 05-09-2002 when the informant was alone in her office the petitioner caught hold her hand but she anyhow got herself free from him. It is further alleged that the accused used to threat and allure her for fulfilment of his lust. On 22-09-2002 at about 8. 30 P. M. while the informant was returning from market with her mother, suddenly, one Blue coloured Maruti Car came and stopped there in which the petitioner and one other person were there. The petitioner thereafter, got down from the Car and told the informant"adivasi hokar itna ghamand karti ho. Tumhare jaise Adivasi hamare ghar, mein naukrani ka kaam karti hain, or hum jaisa chahte hain vaisa karte hain. "thereafter she was forcibly taken in the car and then accused petitioner tried to commit rape. The other person was catching hold of her mother and was also assaulting her. The informant was trying to get herself freed and in that course she also received injury and her clothes were also torn. In the meantime on halla raised by the informant, two motorcyclists came there and then it is said that the accused persons fled away by giving threat to the informant that she would be abducted. ( 4 ) THE police took up the investigation and submitted final report finding the case to be false. In the meantime on halla raised by the informant, two motorcyclists came there and then it is said that the accused persons fled away by giving threat to the informant that she would be abducted. ( 4 ) THE police took up the investigation and submitted final report finding the case to be false. ( 5 ) AFTER submission of the final rtport the learned Chief Judicial Magistrate, issued notice to the informant and then by the impugned order dated 18/07/2003, after perusing the materials in the case diary, found that submission of the final report, finding the case to be false, was not correct, accordingly rejected the said report of the police and took cognizance of the offences alleged against the petitioner, on the basis of the materials in the case diary. ( 6 ) THE learned counsel for the petitioner relying on the decision in the case of mathura Singh State of Jharkhand reported in 2002 (2) JCR 489 : (2002 AIR Jhar. HCR 876 : 2002 Cri LJ 3798) (JHR) submitted that the cognizance taken under section 3 (X) (XI) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was bad because the investigation of the case was not made by a police officer of the rank of Dy. S. P. , which was the requirement under the Act. ( 7 ) THE learned counsel for the petitioner further submitted that after submission of the final report by the Police finding the case to be false, notice was issued by the learned chief Judicial Magistrate to the informant and the informant filed protest petition but the learned C. J. M. without considering the protest petition and without treating the case as a Complaint case has wrongly and illegally taken cognizance on the basis of the materials in the case diary. It was further submitted that the allegations made in the fir are absurd and unbelievable and. no prima facie case for committing any offence is made out and, therefore, the cognizance taken thereof is bad in law and as such is liable to be quashed. It was further submitted that the allegations made in the fir are absurd and unbelievable and. no prima facie case for committing any offence is made out and, therefore, the cognizance taken thereof is bad in law and as such is liable to be quashed. ( 8 ) SO far as the first submission of the learned counsel for the petitioner regarding incompetency of the Investigating Officer is concerned, the said submission is liable to be rejected outright on a simple ground that in paragraph 23 of the present application, the petitioner has himself, stated that the case was investigated by a competent authority, i. e. Dy. S. P. It further appears from the final report of the police submitted under section 173 Cr. P. C. which has been annexed as Annexure-2 to the present application, it is apparent that the same has been submitted by the Dy S. P. and, therefore, it is clear that the investigation was done by a dy. S. P. and as such the submission of the petitioner that the Investigation Officer was not competent to investigate the case, is rejected. ( 9 ) SO far the second submission with regard to absurdity of the allegations made in the FIR is concerned, it appears that the learned Chief Judicial Magistrate after considering the allegation made in the FIR as well as the materials collected during investigation and recorded in the case diary has come to the conclusion that the prima facie case is made out for taking cognizance and, therefore, in my view, at this stage this Court cannot sit in appeal against the order taking cognizance by the learned Chief Judicial Magistrate. The truthfulness or otherwise of the allegations cannot be decided at this stage. ( 10 ) SO far the last submission of the learned counsel for the petitioner regarding non-consideration of the protest petition is concerned, this submission is also liable to be rejected because it is the satisfaction of the Magistrate, who has to apply his mind on the basis of the materials on record, as to whether any prima facie case for commission of the offence is made out or not. The learned C. J. M. was free to take cognizance either on the basis of the materials collected during investigation and recorded in the case diary or on the basis of the allegations made in the Protest petition. The learned C. J. M. was free to take cognizance either on the basis of the materials collected during investigation and recorded in the case diary or on the basis of the allegations made in the Protest petition. In the present case when the learned C. J. M. found that prima facie case was made out, from the materials in the case diary, then there was nothing wrong and it was not necessary for him to consider the Protest petition filed by the informant. ( 11 ) ACCORDINGLY, I find no illegality in the order impugned. The learned C. J. M. was fully justified and was within his jurisdiction to take cognizance of the offences alleged. Accordingly, I find no merit in this application and thus is dismissed. Application dismissed. --- *** --- .