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2005 DIGILAW 2461 (RAJ)

Sunita Jain v. State of Rajasthan

2005-09-15

R.S.CHAUHAN

body2005
Judgment R.S. Chauhan, J.-The petitioner is challenging the order dated 27.05.2002 passed by the Judicial Magistrate, Mandal and the order dated 04.06.2003 passed by the Additional Sessions Judge NO. 1, Bhilwara. Vide order dated 27.05.2002, the learned Magistrate had refused to take cognizance against the offender for offences under Sections 189, 353, 341 and 342, IPC. Aggrieved by the said order, the petitioner had filed a revision petition before the District and Sessions Judge. The said petition was transferred to the Additional Sessions Judge No. 1, Bhilwara, who vide his order dated 04.06.2003 rejected the revision petition and upheld the order dated 27.05.2002. 2. According to the petitioner, she was working as Assistant Public Prosecutor II, at Mandal, Bhilwara. On 10.05.2001. Smt. Sumitra Sankhla, an Advocate in the Court, came to her office and tried to persuade her that the petitioner should not oppose the bail of her client and also that she should file the challan immediately in another case. When the petitioner opposed such tactics, allegedly Smt. Sumitra Sankhla not only threatened her, but also restrained the petitioner from going out of her office. She further threatened the petitioner that in case she did not do her bidding, then the petitioner would be falsely implicated in a "trap case". The petitioner further alleged that immediately she sent a complaint to the concerned S.H.O. and also requested the Superintendent of Police to initiate a case under Section 353, IPC against Smt. Sumitra Sankhla. 3. Since, the police did not take any action against the alleged offender, therefore, she filed a complaint before the Judicial Magistrate on 10.05.2002 for taking cognizance against the offender. On 10.05.2002, the police submitted its report. According to the police, a case under Section 186, IPC was made out against the offender. The case was then fixed on 13.05.2002. However, on 13.05.2002 there was no effective hearing of the matter. The case was adjourned to 27.05.2002. The petitioner claims that on 27.05.2002, while the Court was in morning session, at 7.45 a.m., in her absence and without giving her an opportunity to present her case, the impugned order was passed. The learned Magistrate not only dismissed the petitioners complaint, but also passed strictures against her. Her application was rejected obstinately on the ground that offence under Section 186, IPC is a non-cognizable offence. The limitation for taking cognizance for the said offence was already over. The learned Magistrate not only dismissed the petitioners complaint, but also passed strictures against her. Her application was rejected obstinately on the ground that offence under Section 186, IPC is a non-cognizable offence. The limitation for taking cognizance for the said offence was already over. Therefore, the Court can neither take cognizance nor direct an enquiry into the case. Since, the petitioner was aggrieved by the said order, she filed a revision petition as mentioned above. However, vide order dated 04.06.2003, the learned Judge was pleased to dismiss the petition. Hence, the present petition before us. 4. Mr. Usman Gani, the learned Counsel for the petitioner, has aruged that a bare perusal of the complaint filed by the petitioner would clearly reveal that the offences under Sections 189, 341 and 353, IPC are made out. Since, the offences under Sections 189, 341 and 353, IPC are cognizable offences punishable with imprisonment for two years, therefore, the complaint was within limitation. Hence, the learned Magistrate should have taken cognizance of the said offences and passed the necessary orders. According to him, likewise, the learned Judge should have appreciated the gravity of the matter and should have realized that the offences under Sections 189, 341 and 353, IPC are prima facie made out. According to him, both the learned Magistrate and the learned Judge have erred in applying the law. Thus, in the interest of justice, both the impugned orders deserve to be quashed and set aside. 5. The learned Public Prosecutor on the other hand, has supported the impugned orders. 6. Having heard the Counsel for both the Counsels, we have given our anxious consideration to the impugned orders. 7. Although, the order dated 27.05.2002 is a long one, but nonetheless, the learned Magistrate has missed the forest for the woods. Firstly, the learned Magistrate has flied to appreciate the gravity of the matter. Allegedly Smt. Sumitra Sankhla had tried to pressurize the complainant, who was working as Assistant Public Prosecutor II. She not only asked for an illegal favour from the complainant, but also threatened an injury to the complainants reputation and prevented the complainant from leaving her office. Such a behavior is neither expected from an Advocate, nor should such a behaviour be condoned on hyper-technicalities. If the Advocates are permitted to brow beat the Public Prosecutors, the criminal judicial system would falter. Such a behavior is neither expected from an Advocate, nor should such a behaviour be condoned on hyper-technicalities. If the Advocates are permitted to brow beat the Public Prosecutors, the criminal judicial system would falter. After all, the Public Prosecutor represent the State in its endeavor to bring the guilty home and to protect the society from the depredations caused by the offenders. Thus, the Public Prosecutors play a pivotal role in the criminal judicial system. Therefore, the learned Magistrate should have taken a serious view of the matter instead of losing himself in the labyrinth of legal technicalities. 8. The learned Magistrate has taken a short cut to dismiss the report submitted by the police and the complaint submitted by the petitioner. Instead of examining the entire facts of the case, instead of considering the various offences allegedly committed by the offender, the learned Magistrate has ipso facto accepted the police report that the offence falls only under Section 186, IPC. Curiously, the learned Magistrate has recorded that the complainant was not present in the Court. Since, the allegations were grave, the learned Magistrate should have adjourned the case till the complainant appeared before the Court and presented her case and her witnesses before the Court. In a hot haste, the Magistrate has concluded that the offence relates only to Section 186, IPC without applying his mind. The petitioner has alleged not only that she was prevented from carrying out her duties, but also that she was threatened with dire consequences in case she did not concede to the illegal demands made by the offender. While Section 186, IPC deals with "obstructing the public servant from discharging his public functions", Section 189 deals with "holding out of any threat of injury to any public servant for the purpose of inducing that public servant to do any act, or to forbear or delay to do any act, connected with the exercise of the public functions of such public servant". In the instant case, prima facie the complainant was threatened by Smt. Sumitra Sankhla that she will be falsely implicated in a trap case under the Prevention of Corruption Act. Moreover, the petitioner was prevented from leaving her office and to attend to her work in the Courts. Thus, there was a "threat of injury" both to her reputation and to her physical self . Moreover, the petitioner was prevented from leaving her office and to attend to her work in the Courts. Thus, there was a "threat of injury" both to her reputation and to her physical self . Moreover, since Smt. Sumitra Sankhla prevented the petitioner from leaving the offfice, therefore, prima facie she has committed the offence of "wrongful restraint", which is punishable under Section 341, IPC. Both Sections 189 and 341, IPC are cognizable offences, which can be investigated by the police without seeking any prior permission from a Magistrate. The learned Magistrate has over looked the existence of these offences. Under myopic vision, the learned Magistrate has confined his entire discussion to offence under Section 186, IPC. According to him, since the offence is non-cognizable, therefore, it cannot be investigated by the police without the prior permission of the Magistrate. In case, the learned Magistrate were to use a catholic vision, he would have realized that the allegations prima facie make out a case for other offences enumerated in the Indian Penal Code. Thus, the learned Magistrate has failed to exercise a jurisdiction vested in him by law. Without appreciating the lacunae in the order dated 27.05.2002, the learned Judge has passed a mechanical order upholding the impugned order. The learned Judge has ignored the settled principle of law that a Magistrate is not bound by the report submitted by the police. Indeed, he can travel beyond the said report and come to a different conclusion about the existence of other offences. Moreover, as the complaint had been filed by the petitioner, the learned Magistrate should have given her an opportunity to get her statement and the statement of her other witnesses recorded by the Court. The ultimate aim of the Court is to do justice. Therefore, the Court should refrain from short-circutting the entire judicial process by passing a mechanical order. Since, it is the duty of the Court to keep the stream of justice pristine, both the learned Magistrate and the learned Judge should have seriously applied their minds to the allegations levelled by the petitioner. Therefore, in the circumstances, we deem it proper to allow the petition and to quash and set aside the orders dated 27.05.2002 passed by the Judicial Magistrate and the order dated 04.06.2003 passed by the learned Additional Session Judge No. 1, Bhilwara. Therefore, in the circumstances, we deem it proper to allow the petition and to quash and set aside the orders dated 27.05.2002 passed by the Judicial Magistrate and the order dated 04.06.2003 passed by the learned Additional Session Judge No. 1, Bhilwara. Notwithstanding our observations about the prima facie existence of certain offences, we remand the case back to the Judicial Magistrate for holding further inquiry in accordance with law