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2005 DIGILAW 1500 (RAJ)

Narayan Ram v. State of Rajasthan

2005-05-18

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This criminal revision under Section 397/401 of the Code of Criminal Procedure, 1973 (for short the Code hereinafter) is directed against the order dated 22.03.2005 passed by Judicial Magistrate, Pipar City (for short the trial Court hereinafter) in Criminal Case No. 44/2002 whereby the protest petition filed by the petitioner complainant was dismissed and negative final report being FR No. 44/2002 filed by the police in FIR No. 117/2002 Police Station Pipar City, District Jodhpur was accepted. Aggrieved by the order impugned, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the parties. Perused the order impugned. I have carefully gone through the record of the trial Court. 3. A complaint was filed by the petitioner-complainant before the trial Court on 16.04.2002, inter alia, alleging therein that the petitioner is in possession of an agriculture land bearing Khasra No. 341 in Village Devnagar (Khariya Khangar) as the Khatedar. The land is surrounded by wall having 6 feet height constructed with stones. It was alleged that on 14.04.2002, at about 2.30 p.m., the accused named therein committed trespass and demolished the stone-wall constructed by the petitioner about 225 feet in length and the stones were taken away by the accused named therein in the tractors. It was also alleged that in as many as 16 trolleys stones and an iron gate have been taken away by the accused persons causing loss to the petitioner to the tune of Rs. 16,000/-and Rs. 4,000/-respectively. The complaint was sent to the police for investigation under Section 156 (3) of the Code, upon which, the police registered Crime Report No. 117/2002 P.S. Pipar City. The matter was investigated by the police. During investigation, police prepared the site map and site inspection note. However, finding that some of accused persons named therein had already filed a revenue suit for permanent injunction under Section 188 of the Rajasthan Tenancy Act, 1955 against Pancharam and Others, the police submitted negative final report. The petitioner filed a protest petition on 10.11.2003 requesting the trial Court to take cognizance of the offences against the accused named therein under Sections 447, 427 and 379, IPC. The trial Court, by order impugned, refused to take cognizance and accepted the negative final report and dismissed the protest petition filed by the petitioner. 4. The petitioner filed a protest petition on 10.11.2003 requesting the trial Court to take cognizance of the offences against the accused named therein under Sections 447, 427 and 379, IPC. The trial Court, by order impugned, refused to take cognizance and accepted the negative final report and dismissed the protest petition filed by the petitioner. 4. Before the trial Court, petitioner examined himself under Section 200 of the Code and produced witnesses Baljeeet Singh, Bhikharam @ Bhupatu, Tulchharam and Bheraram. These witnesses stated on oath that the petitioner is in possession of land measuring 13/1/2 biswas of Khasra No. 341 as it came in his share. It has also been stated that petitioner constructed stone boundary wall of about 6 feet in height and installed an iron gate. On 14.04.2002 at about 2.30 p.m., Kishnaram, Bhanwarlal, Narainram, Girdhari, Mangaram, Madanlal, Kanaram, Pokarram, Dayalaram, and Ghewarram came in two tractors which were driven by Madanlal and Pokarram respectively and started demolishing the boundary wall having length of about 200 feet and took away the stone as many as in 16 tractor trolleys as also took away iron gate of the petitioner. While accused named in crime report were taking away stones and iron gate, it was seen by the petitioner, his son Baljeet and Bhikaram. Despite their objection, the accused persons named above entered into the agriculture filed which was in the possession of the petitioner and took away the stones after having demolishing the wall and an iron gate. Similar are the statements of Baljeet Singh and Bhikaram who were said to be eye-witnesses of the occurrence. 5. The witness Tulcharam in his statement stated that he knows the petitioner and accused. The land bearing Khasra No. 341 measuring 13 biswas came in the share of the petitioner by a mutual partition which took place about 30-40 years ago and since then the petitioner is in possession of agriculture land bearing Khasra No. 341 which is in the Eastern side of his Khasra. The complainant had been cultivating the land. The land is surrounded by a boundary wall of about 5-6 feet in height. In the Western side of the said Khasra, the land came in the share of the accused persons. It was further stated that the petitioners boundary wall was demolished and stones were taken away by the accused persons in the tractors causing loss of about Rs. The land is surrounded by a boundary wall of about 5-6 feet in height. In the Western side of the said Khasra, the land came in the share of the accused persons. It was further stated that the petitioners boundary wall was demolished and stones were taken away by the accused persons in the tractors causing loss of about Rs. 15,000/- to 20,000/-. Similar is the statement of Bheraram. 6. The trail Court dismissed the protest petition on the ground that there is a partition suit pending between the parties relating to Khasra No. 341 in the Revenue Court. From the record it appears that the suit filed by Pokar Ram one of the accused, is not for partition but the permanent injunction under Section 188 of the Rajasthan Tenancy Act, 1955. The other ground on which the protest petition was dismissed and negative final report was accused, was the non-explanation of delay of two days in filing the complaint. The occurrence alleged to have taken place on 14.04.2002 at about 2.30 p.m. and the complaint was filed before the trial Court on 16th April, 2002. It is contended on behalf of the petitioner that 14th April was Sunday and the petitioner filed a civil writ petition being S.B. Civil Writ Petition No. 1333/2002 before this Court under Articles 226 and 227 of the Constitution of India on 15th April, 2002 against the accused named in the FIR and thereafter on the very next day i.e. 16th April, 2002 the complaint was filed before the trial Court. From the perusal of the record, it is evident that the aforesaid writ petition was filed on 15.04.2002 and on 16.04.2002 the writ petition was admitted and subsequently on 19.04.2002 the interim stay was granted in favour of the petitioner after hearing the Counsel appearing for the respondents therein in respect of land bearing Khasra No. 341. From the facts noticed above, it appears that right from the date of occurrence, the petitioner was vigilant to initiate the proceedings and accordingly he first filed writ petition before this Court looking to the urgency of the matter and then a complaint before the Judicial Magistrate and, therefore, viewed from any stand point, the delay in filing the complaint has been explained. Even otherwise, at the stage of taking cognizance, the question of delay cannot be a ground for refusing to take cognizance. Even otherwise, at the stage of taking cognizance, the question of delay cannot be a ground for refusing to take cognizance. It is a matter of evidence and its effect has to be seen at the trial of the case. During inquiry in revenue case, a site report was prepared on 04.02.2001, which is prior in time of the date of occurrence, wherein it has been specifically shown that the land situated in Eastern side of Khasra No. 341 is in possession of the petitioner and a wall has been constructed. This document is dated 04.02.2001, whereas the occurrence is of 14.04.2002, i.e. almost after more than a year. This clearly shows prima facie that if not for any longer period, but at least for more than one year before the occurrence, the petitioner was in possession of the land situated in the Eastern side of the Khasra No. 341 having boundary wall. It is settled law that at the stage of taking cognizance, the Court is to consider from the material placed before it as to whether there is sufficient ground to proceed against the accused and not whether there is sufficient ground for conviction. At the stage of cognizance, the Court is not required to meticulously examine the evidence. 7. In Jagdish Ram vs. State of Rajasthan, reported in AIR 2004 SC 1734 , Honble Supreme Court has held that at this stage of cognizance, the Magistrate has 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 stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. 8. In this view of the matter, the order impugned cannot be sustained and is liable to be set aside. 9. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. 8. In this view of the matter, the order impugned cannot be sustained and is liable to be set aside. 9. Consequently, the revision petition is allowed. The order impugned dated 22.03.2005 passed by Judicial Magistrate, Pipar City in Criminal Case No. 44/2002 is set aside. The trial Court is directed to hold further inquiry and pass appropriate order after consideration of the existing material on record. It is made clear that the further inquiry only means reconsideration of the existing evidence. The record of the trial Court be returned forthwith.