Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 425 (RAJ)

Kishan Lal v. State of Rajasthan

2005-02-10

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, "the Code"), the petitioner-complainant has challenged the order dated 12.03.2004 passed by the Sessions Judge, Hanumangarh (for short, "the Revisional Court") in Criminal Revision Petition No. 65/2003, whereby the revisional Court set-aside the order dated 22.03.2003 passed by the Chief Judicial Magistrate, Hanumangarh (for short, "the trial Court") whereby the trial Court took cognizance of the offences under Sections 307, 326, 325, 324 and 323/34, IPC against respondent No. 2 Smt. Kaushalya apart from taking cognizance of the offences against co-accused Prithvi Ram, Aati Ram alias Atma Ram, Sahab Ram and Sudesh Kumar. Aggrieved by the order of the revisional Court, the petitioner-complainant has filed the instant revision petition. 2. I have heard learned Counsel for the parties. Perused the order impugned passed by revisional Court as well as the order dated 22.03.2003 passed by the trial Court taking cognizance of the offences against the respondent No. 2. 3. It is contended by the learned Counsel for the petitioner that on the strength of Parcha-Bayan of the petitioner, Crime Report No. 153/2003 was registered against the respondent No. 2 and other co-accused. After investigation, the police filed challan against the co-accused Prithvi Ram, Aati Ram alias Atma Ram, Sahab Ram and Sudesh Kumar; however, no challan was filed against respondent No. 2 Smt. Kaushalya & three Ors., viz. Smt. Guddi Devi W/o Sahab Ram, Smt.Sharda W/o Prithivi Ram and Manju Devi D/o Lekh Ram. On filing of the challan by the police against four co-accused noticed-above, the complainant-petitioner filed an application before the trial Court for taking cognizance of the offences also against the accused who were left out by the police, whereupon the trial Court took cognizance of the offences against the respondent No. 2. According to the learned Counsel for the complainant-petitioner, the order taking cognizance of the offences passed by the trial Court has been arbitrarily and erroneously interfered by the revisional Court. Learned Counsel for the contesting respondent submitted that there was no material before the trial Court to take cognizance of the offence against the respondent No. 2 and other ladies named in the application by the complainant-petitioner. .4. Learned Counsel for the contesting respondent submitted that there was no material before the trial Court to take cognizance of the offence against the respondent No. 2 and other ladies named in the application by the complainant-petitioner. .4. The facts giving rise to the instant revision petition are that on 22.05.2002, Rajendra Singh, ASI, recorded the statement of injured-complainant at Government Hospital, Hanumangarh Town. The injured-complainant stated in his Parcha-Bayan that on 21.05.2002, at about 8:30 PM, accused Prithvi Ram and Aati Ram caught-hold the complainant and a sum of Rs. 1,600/-was taken out from the pocket of his shirt by accused Prithvi Ram and started beating him. The wife of Jas Ram viz. Smt. Kaushalya, respondent No. 2, came from behind armed with a Gandasi and inflicted a Gandasi-blow to him. Co-accused Sudesh, Sahab Ram and his wife, Prithvi Rams wife and niece of Jas Ram inflicted Gandasi and Lathi blows to him. Due to the beatings given by the accused, his brother and son Sandeep also suffered injuries. Thereafter, they were taken to the hospital. On this Parcha-Bayan, the Crime Report No. 153/2003 was registered by the police and investigation ensued. After investigation, the police did not find any offence having been committed by respondent No. 2 Smt. Kaushalya, Smt. Guddi Devi, Sharda and Manju; however, challan was filed against accused Prithvi Ram, Aati Ram, Sahab Ram and Sudesh. On an application filed by the petitioner-complainant, the trial Court prima .facie came to the conclusion that in the statement (Parcha-Bayan) of the petitioner, it has been clearly stated that the wife of Jas Ram, i.e., respondent No. 2 Smt. Kaushalya, inflicted Gandasi blow on the head of complainant-petitioner. The complainant-petitioner, in his statement under Section 161, CrPC, as also the other witnesses Sandeep Kumar, Banwari Lal, Bhani Ram, Ant Ram and Vinod Kumar, in their statement under Section 161, CrPC, have clearly stated that the wife of Jas Ram, viz. Smt. Kaushalya (respondent No. 2) caused grievous and simple injuries to the person of the petitioner by making an attempt to life. On the strength of the material on record, the trial Court took cognizance of the aforesaid offences against the respondent No. 2 also. However, so far as other ladies who were named in the application, viz. Smt. Kaushalya (respondent No. 2) caused grievous and simple injuries to the person of the petitioner by making an attempt to life. On the strength of the material on record, the trial Court took cognizance of the aforesaid offences against the respondent No. 2 also. However, so far as other ladies who were named in the application, viz. Smt. Guddi, Smt. Sharda and Manju Devi are concerned, the trial Court did not find sufficient material to proceed against them. Respondent No. 2 Smt. Kaushalya was summoned by non-bailable warrant. One of the offence, i.e., offence under Section 307, IPC, is triable by the Court of Sessions. .5. The question of taking cognizance of the offence and issuing process against the accused persons who were named in the FIR but on investigation no challan was filed against them and they were not sent up for trial and the trial Court issued process against the left out persons and arraigned them as accused alongwith those accused challaned by the police, came up for consideration before the Honble Supreme Court in M/s. SWIL India Ltd. vs. State of Delhi, 2001 (6) SCC 670 , wherein the Honble Apex Court held as under:- ."In our view, from the facts stated above, it is clear that at the stage of taking cognizance of the offence provisions of Section 190, CrPC would be applicable. Section 190 inter alia provides that the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence. As per this provision, the Magistrate takes cognizance of an offence and not of the offender. After taking cognizance of the offence, the Magistrate under Section 204 CrPC is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered alongwith charge-sheet. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered alongwith charge-sheet. Further, upon receipt of police report under Section 173(2), CrPC, the Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police." 6. In Rajinder Prasad vs. Bashir & Ors., 2001 (8) SCC 522 , the Honble Supreme Court observed that the Magistrate has taken recourse to Chapter XIV (Sections 190 to 199) of the Code and held as under:-"Under this Section, a Magistrate has jurisdiction to take cognizance of offences against such persons also who have not been arrested by the police as accused persons, if it appears from the evidence collected by the police that they were prima facie guilty of the offence alleged to have been committed. Section 209 of the Code prescribes that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit, after compliance with the provisions of Section 207 or Section 209, as the case may be, the case to the Court of Session and subject to the provisions of the Code, pass appropriate orders. This Section refers back to Section 190, as is evident from the words instituted on a police report used in Section 190(1)(b) of the Code." 7. Under Section 190 of the Code, a Magistrate has jurisdiction to take cognizance of the offence against such persons, if it appears from the evidence collected by the police that they were prima facie guilty of the offence alleged to have been committed. Under Section 190 of the Code, a Magistrate has jurisdiction to take cognizance of the offence against such persons, if it appears from the evidence collected by the police that they were prima facie guilty of the offence alleged to have been committed. Section 209 of the Code prescribes that when in a case instituted on the police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code, pass appropriate orders. This section refers back to Section 190 of the Code as is evident from the words "instituted on a police report" used in Section 190(1)(b) of the Code. Relying on a Three Judge Bench decision in Raghubans Dubey vs. State of Bihar, AIR 1967 SC 1167 , Their Lordships held that the cognizance taken by the Magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a Magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the police some other persons were also involved, it is his duty to proceed against those persons as well. 8. In Rajinder Prasads case (Supra), one of the offence was under Section 395, IPC which is exclusively triable by the Court of Sessions. In SWIL India Ltd.s case (Supra), the Honble Apex Court held that there is no question of referring to the provisions of Section 319 of the Code as that provision would come in the operation in the course of inquiry or trial of the offence. 9. In the present case, neither the Magistrate has held the inquiry as contemplated under Section 2(g) of the Code nor the trial had started. He was exercising the jurisdiction under Section 190 of the Code taking cognizance of the offence and issuing process. 9. In the present case, neither the Magistrate has held the inquiry as contemplated under Section 2(g) of the Code nor the trial had started. He was exercising the jurisdiction under Section 190 of the Code taking cognizance of the offence and issuing process. There is no bar under Section 190 of the Code that once the process is issued against some accused, on the next day the Magistrate cannot issue process against some other persons, against whom some material is on record but his name has not been included as accused in the charge-sheet. 10. In view of the decisions of the Honble Apex Court in Rajinder Prasad and SWIL India Ltd.s cases (Supra), the trial Court was justified in taking cognizance of the offences against respondent No. 2 Smt. Kaushalya and, therefore, the Revisional Court fell in error in interfering with the order of the trial Court taking cognizance of the offence against respondent No. 2. 11. Consequently, the revision petition is allowed. The impugned order dated 12.03.2004 passed by the Sessions Judge, Hanumangarh in Criminal Revision Petition No. 65/2003 is hereby set-aside and the order of the trial Court dated 22.03.2003 is restored.