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2006 DIGILAW 2979 (RAJ)

Sukha Ram v. State of Rajasthan

2006-11-03

H.R.PANWAR

body2006
Honble PANWAR, J.–This criminal miscellaneous petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code" hereinafter) is directed against the order dated 25.1.2006 passed by the Judicial Magistrate No.7, Jodhpur (for short, "the trial Court" hereinafter) whereby the trial Court took cognizance of the offences under Sections 302 and 365 IPC and summoned the petitioners by non-bailable warrant. Aggrieved by the order impugned, the petitioners have filed the instant criminal miscellaneous petition. (2). I have heard learned counsel for the parties. Carefully gone through the order impugned as also the material placed on record including the police investigation papers. (3). The facts and circumstances giving rise to the instant petition are that complainant Mangla Ram lodged an FIR with the Police Station, Dangiyawas, District Jodhpur, on 24.10.2004 alleging therein that on 23.10.2004, at about 11.00 p.m., both the petitioners came to his house, called his son Dhanna Ram (deceased), on which when Dhanna Ram came out of the house, the petitioners started abusing him, assaulted him and thereafter when the complainant and other persons tried to intervene, he was kidnapped and taken away. It was also alleged that apart from deceased Dhanna Ram, the other persons who came to rescue Dhanna Ram, also suffered injuries at the hands of the petitioners. Thereafter, he received a telephone in the morning at 10.00 a.m. that his sons dead body is lying near the railway line. On this report, the police registered the crime report and investigated the matter. After investigation, the police filed negative final report. On a notice, the complainant filed a protest petition. The trial Court, on considering the material filed by the police, prima facie came to the conclusion that from the statements of witnesses recorded by the police, the post mortem report and the other evidence on record, prima facie there is a ground to proceed against both the petitioner for the offences under Sections 302 and 365 IPC and issued the process, as noticed above. (4). It is contended by the learned counsel for the petitioners that the occurrence alleged to have taken place in village Beenawas, to which the complainant and the deceased belong, whereas the dead-body of Dhanna Ram was found lying near the railway line near Banad, which is nearer to Jodhpur City. (4). It is contended by the learned counsel for the petitioners that the occurrence alleged to have taken place in village Beenawas, to which the complainant and the deceased belong, whereas the dead-body of Dhanna Ram was found lying near the railway line near Banad, which is nearer to Jodhpur City. Learned counsel for the petitioners further contended that it was the deceased himself, who, after consuming liquor, committed the suicide and the petitioners have been falsely implicated. It was contended that the trial Court, before taking cognizance of the offences, did not follow the procedure provided under Sections 200 and 202 of the code, as in the instant case, though the complainant filed the protest petition but neither he made statement under Section 200 of the Code, nor produced any witness and, therefore, the order taking cognizance is bad in the eye of law. It was further contended that the conduct of the complainant is high unnatural. Had his son been assaulted and kidnapped by the petitioners, the complainant would have lodged the report promptly and, therefore, the delay in lodging the report creates suspicion. (5). Learned Public Prosecutor and the learned counsel for the complainant have supported the order impugned and contended that there is direct evidence of the eye-witnesses, in whose presence, initially the deceased was assaulted and thereafter kidnapped and subsequently the deceased was found dead near the railway lines and, therefore, there is direct evidence of assaulting and thereafter kidnapping him by the petitioners and subsequently the dead-body of deceased was found near the railway line and, therefore, there is no reason to disbelieve the statements of witnesses who had seen the occurrence. (6). I have carefully gone through the statements of the witnesses recorded by the police and named in the FIR, as also the post-mortem report of the deceased. The deceased suffered as many as nineteen injuries. In the opinion of the Medical Board, which conducted the post-mortem on the deceased, the cause of death was found to be shock, haemorrhage due to injuries. The injuries were found to be ante-mortem in nature. The deceased suffered as many as nineteen injuries. In the opinion of the Medical Board, which conducted the post-mortem on the deceased, the cause of death was found to be shock, haemorrhage due to injuries. The injuries were found to be ante-mortem in nature. Right from lodging the FIR, the case of the prosecution is consistent that both the petitioners came together to the house of the complainant, the deceased was called out side by the petitioners and the moment the deceased came out of the house, the petitioners started assaulting him and forcibly took him away by kidnapping him. That occurrence took place at 11.00 O clock in the night and in the next morning, the dead-body of the deceased was found near the railway lines. Ram Lal, an eye-witness to the occurrence, who tried to rescue the deceased while he was being beaten, also suffered injuries, which is evidence from the injury report of Ram Lal. The site map also shows that the dead-body was lying away from the railway track. The police submitted the negative final report on the ground that on 23.10.2004, the deceased molested the wife of petitioner No.2 Ramu Ram and that occurrence was witnesses by petitioner No.2 Ramu Ram, and, therefore, the petitioner felling himself ashamed, committed the suicide. The trial Court did not find this ground to be a plausible and keeping in view the post-mortem report, the nature and number of injuries and the statements of the witnesses, viz., Mangla Ram, Mahendra Singh and Ganpat Singh who are the neighbourers of the complainant and the deceased, as also the motive of the petitioners to commit the murder of deceased Dhanna Ram that it was the deceased who molested the wife of petitioner No.2 Ramu Ram and the fact that the deceased was taken away from his house by the present petitioners after assaulting him, dragging him and kidnapping him and thereafter he was found dead, prima facie came to the conclusion that there is sufficient ground to proceed against the petitioners and according took the cognizance of the offences and issued the process, as noticed above. (7). Learned counsel for the petitioners has relied on a decision in Gulam Hussain vs. Amina Bano & Ors., 2003(1) R.C.C. 319 = (RLW 2003(3) Raj. (7). Learned counsel for the petitioners has relied on a decision in Gulam Hussain vs. Amina Bano & Ors., 2003(1) R.C.C. 319 = (RLW 2003(3) Raj. 1842), wherein this Court that where the Magistrate would have taken cognizance of the offence, in such situation, he is duty bound to record the statement of the complainant and his witnesses under Sections 200/202 of the Code. (8). In Om Prakash vs. State of Rajasthan, 1992 Cr.L.R. (Raj.) 642, this Court, while considering the provisions of proviso (b) of sub-section (1) of Section 202 of the code, held that it was necessary for the Magistrate to have recorded the statements of the complainant and then to have proceeded to record the statement of other witnesses under Section 202 of the Code. In the absence of the statement of the complainant, the Magistrate was not justified in taking cognizance of the offence against the accused-petitioner therein. (9). In Anil Kumar Chauhan vs. The State of U.P. & Anr., 2004 Cri.L.J. 3557, the Allahabad High Court held that after receipt of the final report and filing of the protest petition, learned Judge was required to treat the protest petition as a complaint and record the statement of the informant under Section 200 and his witnesses under Section 202 of the Code. Thereafter, he was required to decide to issue process against the accused provided he found sufficient grounds. In that case the informant filed protest petition along with his own affidavit and an affidavit of his brother. His statement was not recorded under Section 200 of the Code and no enquiry was conducted under Section 202 of the Code and, therefore, it was held that the learned Judge committed illegality in not following the correct procedure after receipt of the final report and he was not justified in summoning the accused to face trial. (10). The aforesaid decisions relied on by the learned counsel for the petitioners are of no help to the extent that in the instant case, the matter was investigated by the police, the police recorded the statements of witnesses and collected other evidence and filed the negative final report, which was protested by the complainant and the complainant contended that from the police papers, prima facie the offences are made out. The trial Court, on consideration of the material placed before it, prima facie came to the conclusion that there is sufficient ground to proceed against both the petitioners for the offences noticed above and also held that the conclusion arrived at by the police by giving the negative final report are not probable and are contrary to the evidence of the eye witnesses. Therefore, in my view, in such circumstances, it was not obligatory on the part of the trial Court to examine the complainant and his witnesses under Sections 200 and 202 of the Code. (11). In Gangadhar Janardan Mhatre vs. State of Maharashtra & Ors. (2004) 7 SCC 768 , the Honble Supreme Court held as under: "When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceedings; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(109b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also." (12). In M/s. India Carat Pvt. Ltd. vs. State of Karnataka & Anr., AIR 1989 SC 885 , a Three Judge Bench of the Honble Supreme Court held as under: "Upon receipt of police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or 202 also." (13). In Jagdish Ram vs. State of Rajasthan & Anr., AIR 2004 SC 1734 , the Honble Supreme Court held as under: "In the instant case the order passed by the Magistrate taking cognizance is a well written order. The order not only refers to the statements recorded by the police during investigation which led to be filing of final report by the police and the statements filing of final report by the police and the statements of witnesses recorded by the Magistrate under Ss. 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had 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 purposes. The investigation is the exclusive domain of the police. 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." (14). Keeping in view of the above decisions of the Honble Apex Court, in my view, the judgments relied on by the learned counsel for the petitioners do not help the petitioners. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons." (14). Keeping in view of the above decisions of the Honble Apex Court, in my view, the judgments relied on by the learned counsel for the petitioners do not help the petitioners. It is settled law that upon filing of police report, a Magistrate, in view of the decision of the Honble Court in Bhagwant Singh vs. Commissioner of Police & Anr., AIR 1985 SC 1285 , wherein it has been stressed that intimation to be given to the complainant when a report is made by the police under Section 173(2) of the Code, more particularly on filing a negative final report is under consideration, is under an obligation to inform the complainant before considering the final report filed by the police and in the instant case, on receiving the notice from the Court, the informant appeared before the trial Court and protested the filing of negative final report filed by the police by filing a protest petition and upon hearing the complainant and the Assistant Public Prosecutor and on consideration of the material i.e. the police papers filed by the police under Section 173(2) of the Code, the trial Court came to the conclusion that there is ground to proceed against the present petitioners for the offences noticed above. In my view, the impugned order of the trial Court does not suffer from any error, illegality or perversity as the trial Court is not bound to follow the procedure in such a matter as envisaged under Sections 200 and 202 of the code. In view of the decisions of the Honble Supreme Court in Gangadhar Janardan Mhatre vs. State of Karnataka (supra); and Jagdish Ram vs. State of Rajasthan & Anr. (supra), a Magistrate is not bound to accept the negative final report filed by the police and the Magistrate is required to apply its mind independently of the conclusion arrived at by the police upon receipt of a police report under Section 173(2) of the code to take cognizance of an offence under Section 190(1)(b) of the Code if prima facie there exists a ground to proceed against the accused. (15). In this view of the matter, I do not find any error, illegality or perversity in the order impugned. (15). In this view of the matter, I do not find any error, illegality or perversity in the order impugned. More so, it is settled law that the powers under Section 482 of the Code are to be exercised sparingly and in exceptional cases where it is brought to the notice of the Court that the order under challenge would result in serious miscarriage of justice or abuse of the process of the Court. The case in hand does not fall under these categories. (16). In view of the aforesaid discussion, I do not find any merit in the criminal miscellaneous petition and it is accordingly dismissed. The interim stay order dated 9.3.2006, as extended by the subsequent orders, stand vacated and the stay petition stands dismissed.