Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 1837 (RAJ)

Ramraj v. State

2006-05-23

HARBANS LAL

body2006
JUDGMENT 1. - The instant misc. petition under Section 482 CrPC. is directed against the order dated 25.9.2005 passed by the Judicial Magistrate, Todabhim District Karauli whereby he has directed the police to arrest the accused and to make recovery from them. 2. The relevant facts giving rise to the present petition are that non-petitioner No. 2 Smt. Sugni filed a complaint in the court of Judicial Magistrate on 11.8.2005 stating therein inter alia that about 20-25 days prior to the filing of the complaint petitioners and others made imputation against her son Babu and one Mukesh Meena that they had stolen Alternator belonging to them and thereafter a Panchayat was held in the village in the presence of another accused namely Mannu. Babu and Mukesh were allegedly compelled to pay an amount of Rs. 15,350/- each as cost of the Alternator. It appears that the police did not register the case nor the District Collector or Superintendent of Police paid any heed to the request of non-petitioner No. 2. On this complaint, the learned Magistrate proceeded to record the statement of the complainant under Section 200 Cr.PC. and also recorded the statement of Jaldhari under Section 202 CrPC. Thereafter, the learned Magistrate directed the SHO to make further inquiry under Section 202 CrPC. The S.H.O. acting under the direction of the learned Magistrate recorded the statements of Sugni, Jaldhari, Mukesh, Babu Lal, Jamna Lal, Bhanwar Singh and Devi Singh and submitted his Inquiry Report before the learned Magistrate. The learned Magistrate after considering the inquiry report submitted by the police proceeded to observe that the matter was of warrant trial and the recovery was expected to have been made from the accused persons. The Inquiry Officer ought to have arrested the accused persons to affect the recoveries in view of the provision contained under Section 202(3) Cr.PC. The learned Magistrate after recording the aforesaid observations, made.over the matter to the SHO again with a direction to make complete investigation and submit the Final Report before Court before 29.10.2005. When the petitioners came to know of such a direction they were shocked and surprised as no such direction could be given to the police by the learned Magistrate. The learned Magistrate after recording the aforesaid observations, made.over the matter to the SHO again with a direction to make complete investigation and submit the Final Report before Court before 29.10.2005. When the petitioners came to know of such a direction they were shocked and surprised as no such direction could be given to the police by the learned Magistrate. This apart, after having proceeded to make inquiry under Section 202 Cr.PC., the learned Magistrate had no authority under the law to direct the police to inquire or investigate the matter under Section 202(3) Cr.PC. He had also no authority to direct the police to arrest the accused petitioners and affect recoveries from them. It was, therefore, that the petitioners accused have filed this petition under Section 482 Cr.P.C. for quashing of the order dated 15.9.2005 as it tantamounts to abuse of the process of the court being per-se illegal and patently unauthorised. 3. I have heard learned counsel for the petitioners, learned Public Prosecutor for the State as well as learned counsel for the complainant. 4. It has been contended by the learned counsel for the petitioners on the strength of Rikhab Das v. Manak Chand & Anr., 1998 Cr.L.R. (Raj.) 480 , that the Magistrate is competent to direct for further investigation into the matter but he is not authorised to give direction for conducting investigation in a particular manner. Therefore, the direction to this extent being unjustified and without jurisdiction deserves to be quashed. 5. In H.N. Rishbud and anr. v. State of Delhi, AIR 1955 SC 196 , it has been observed by the Hon'ble Apex Court, as under: "According to the scheme of the Criminal Procedure Code, investigation is a normal preliminary to an accused being put up for trial for a cognizable offence (except when the Magistrate takes cognizance otherwise than on a police report in which case he has the power under Section 202 of the Code to order investigation if he thinks fit). Therefore, when the Legislature made the offences in the Act cognizable, prior investigation by the appropriate police officer was contemplated as the normal preliminary to the trial in respect of such offences under the Act. It is in the light of the scheme of the Code that the scope of a provision like Section 5(4) of the Act has to be judged. It is in the light of the scheme of the Code that the scope of a provision like Section 5(4) of the Act has to be judged. When the Legislature has enacted in emphatic terms such a provision it is clear that it had a definite policy behind it. To appreciate that policy it is relevant to observe that under the Code of Criminal Procedure most of the offences relating to public servants as such are non-cognizable. A cursory perusal of Schedule-11 of the Criminal Procedure Code discloses that almost all the offences which may be alleged to have been committed by a public servant, fall within two chapters, Chapter IX and Chapter XI "Offences against public justice" and that each one of them is non-cognizable. (Vide entries in Schedule II under Sections 161 to 169, 217 to 233, 225-A as also 128 and 129). The underlying policy in making these offences by public servants who have to discharge their functions often enough in difficult circumstances should not be exposed to the harassment of investigation against them on information levelled, possibly, by persons affected by their official acts, unless a Magistrate is satisfied that an investigation is called for, and on such satisfaction authorises the same. What sub-section (2) of Section 156, Criminal Procedure Code cures is investigation by an officer not empowered under that section, i.e., with reference to sub-sections (1) and (3) thereof. Sub-section (1) of Section 156 is a provision empowering an officer in charge of a police station to investigate a cognizable case without the order of a magistrate and delimiting his power to the investigation of such cases within a certain local jurisdiction. There is no universal rule to aid in determining whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. Under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused)." 6. Under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused)." 6. In the case of Emperor v. Khwaja Hazir Ahmad, AIR (32) 1945 Privy Council 18 , it has been held as under: "Just as it is essential that every one accused of a crime should have free access to a Court of Justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of inquiry. In India there is a statutory right on the part of the police under sections 154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities." 7. In the case of Abhinandan Jha and ors. v. Dinesh Mishra, 1968 Cr.L.J. 97 , it has been held by the Hon'ble Apex Court that: "There is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistracy and the police is entirely different and the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accrue with his view." 8. In this view of the matter, therefore, the order passed by the learned Magistrate is not sustainable in law and it deserves to be quashed. The matter needs be remitted back to him to proceed with the inquiry himself as per the provisions of Section 200 and 202 Cr.PC. The directions to arrest the accused are also unwarranted and unauthorised.With the above, this misc. petition under Section 482 Cr.PC. stands disposed of.Petition disposed of as above. *******