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2005 DIGILAW 3162 (RAJ)

Pooran v. State of Rajasthan

2005-11-29

R.S.CHAUHAN

body2005
JUDGMENT 1. - Heard learned counsel for the parties. 2. The petitioner has challenged the order dated 25.8.2005 passed by the Judicial Magistrate 1st Class, Tijara whereby he has taken cognizance against the petitioner for the offence under Section 323 & 376 IPC. 3. The brief facts of the case are that on 4.5.2005 one Susheela Devi lodged a report at Police Station Tijara wherein she stated that in the morning at 7 A.M. after answering the call of nature, she was caught hold of by the accused Pooran S/o Nanda Ram and was allegedly raped by him. On the basis of this, a formal F.I.R. No. 134/2005 was lodged at Police Station, Tijara for the offence under Section 376 & 323 IPC. However, after a through investigation, the police submitted a negative F.R. before the concerned Court. 4. It is also pertinent to point out that on 4.5.2005, the family members of the accused petitioner had also lodged a FIR for the offence under Section 323, 341, 324, 325, 308, 34 IPC wherein the prosecutrix's husband was named as an offender. It is also essential to point that the prosecutrix's husband Sukhpal has also (been) arrested in the said case. 5. Meanwhile, after the submission of the negative F.R., the learned Magistrate has taken cognizance against the present petitioner and summons were issued against the accused petitioner. Subsequently, non-bailable warrant were also issued. 6. I have heard learned counsel for the petitioner as well as the learned Public Prosecutor. 7. The sequence of events would indicate that the FIR has been filed by the prosecutrix as retaliatory move to the FIR which was filed by the family members of the accused. 8. Mr. R.K. Mathur has argued that accused Pooran and his family was assaulted in the morning on 4.5.2005 by number of persons including prosecutrix's husband. He has further contended that although the FIR was lodged by the prosecutrix earlier in time, but the time of the alleged occurrence is later in time. Therefore, it seems that the FIR has been lodged by the prosecutrix in order to save her husband and his henchman. He has further contended that although a negative F.R. was submitted by the police after a through investigation, the learned Magistrate has nowhere discussed the said report. Thus, the cognizance order passed by the Magistrate deserves to be set-aside. 9. He has further contended that although a negative F.R. was submitted by the police after a through investigation, the learned Magistrate has nowhere discussed the said report. Thus, the cognizance order passed by the Magistrate deserves to be set-aside. 9. On the other hand, learned Public Prosecutor has argued that what is the sequence of events on the fateful day is a question of fact to be decided during the trial. He has argued that at the time of taking cognizance, learned Magistrate is required to see the FIR lodged by Fooran's family. Thus, he has supported the impugned order. 10. We have heard learned counsel for both the parties and perused the record. 11. Indeed it is settled principle of law that in case a negative F.R. has been submitted by police, then the learned Magistrate is legally bound to discuss the F.R. He is also duty bound to give sufficient reasons for disagreeing with the negative Final Report, in case of Sampat Singh v. State of Haryana 1993 SCC (Cr.) 376 , the Hon'ble Supreme Court has clearly held that the learned Magistrate is duty bound to state the reasons for disagreeing with the negative Final Report. Recently, in the case of Gopal Sharma v. State of Rajasthan 2005 (10) RDD 4197 (Raj.) The same view has been reiterated. 12. A bare perusal of the impugned order dated 25.8.2005 clearly reveals that the learned Magistrate has not given a single reason of disagreeing with the negative Final Report. Hence the impugned order has been passed mechanically. 13. In the interest of Justice, we set-aside the order dated 25.8.2005 and remand the case to the learned Magistrate. The learned Magistrate is directed to discuss and state the reasons for not agreeing with the finding with the negative report. He is further directed to pass a reasoned order within a period of 2 weeks from the date of receipt of the certified copy of this order. 14. It is also clarified that in case cognizance is taken by the Judicial Magistrate, then the petitioner is free to raise objections at the time of framing of the charge. 15. In the meanwhile, the non-bailable warrant of arrest issued against the petitioner is converted into bailable warrant, provided, he furnishes a personal bond in the sum of Rs. 14. It is also clarified that in case cognizance is taken by the Judicial Magistrate, then the petitioner is free to raise objections at the time of framing of the charge. 15. In the meanwhile, the non-bailable warrant of arrest issued against the petitioner is converted into bailable warrant, provided, he furnishes a personal bond in the sum of Rs. 20,000/- (Twenty Thousand only) with one surety in the like amount to the satisfaction of the learned trial court for his appearance on or before 16th January, 2006. Till then, the petitioner should not be arrested by the police. 16. With these observations, this Cr. Misc. Petition is disposed of.Petition disposed of accordingly. *******