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2006 DIGILAW 363 (RAJ)

Champa Devi v. State of Rajasthan & Ors.

2006-02-03

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.- By the instant Criminal Revision Petition under Section 397/401 CrPC, the petitioner complainant has assailed the order dated 17.06.2005 passed by Additional Sessions Judge, Parbatsar (for short the revisional Court hereinafter) in Criminal Revision No. 54/04, whereby the Revisional Court partly allowed the revision petition filed Non-petitioner Nos. 2 and 3 against the order dated 25.08.2004 passed by Judicial Magistrate, Kuchaman City (for short the trial Court hereinafter) taking cognizance of the offences under Section 376/511, 379 and 323 IPC, and set aside the order taking cognizance for the offence under Section 376/511 IPC, however, the order taking cognizance for the offences under Section 379 and 323, IPC was maintained, Aggrieved by the order impugned, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the petitioner and public prosecutor for the State as also Counsel appearing for the Non-petitioner Nos. 2 and 3. 3. It is contended by the learned Counsel for the petitioner that from the statement of the petitioner and other witnesses produced by the petitioner, prima-facie, the offence punishable under Section 376/511 IPC apart from the offences under Section 379 and 323 IPC are made out and, therefore, the revisional Court fell in error in setting aside the order taking cognizance on the ground of exaggeration in the statement of witnesses produced by the complainant. The statement of the petitioner-complainant and her witnesses were recorded by the trial Court under Sections 200 and 202 CrPC and, therefore, according to learned Counsel it was not the stage for the trial Court to meticulously examine and weigh the evidence as to whether on the basis of the statement of the witnesses ultimately the conviction can be based. 4. Learned Counsel appearing for the contesting Non-petitioners No. 2 and 3 supported the order impugned and contended that the Revisional Court rightly appreciated the evidence while setting aside the order taking cognizance to the extent for the offence under Section 376/511 IPC. 5. I have given my thoughtful consideration to the rival contentions raised by the Counsel for the parties. 6. 5. I have given my thoughtful consideration to the rival contentions raised by the Counsel for the parties. 6. From the perusal of the statement of the petitioner-complainant, it is clear that the Non-petitioners No. 2 and 3 caught hold the petitioner, wrongfully retrained her, fell her down on the ground, lifted her Gagara making her naked, opened his pent, a cloth was put in her mouth and made an attempt to commit rape and Non-petitioner No. 3 gave a slap to the petitioner. This part of the statement of petitioner finds support from the statements of two witnesses namely Nathuram and Pusaram. In view of this evidence, prima-facie there is ground to proceed against the non-petitioner. 7. It is settled law that at the stage of taking cognizance, the Magistrate has 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 purpose. The investigation is the exclusive domain of the police. Taking cognizance of the offence is the area exclusively within the domain of 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 time of issuing process, the Magistrate is not required to record reasons as has been held by Honble Supreme Court in Jagdish Ram vs. State of Rajasthan & Anr. 2004 Cr.LJ 5008 (SC) 8. In State of Maharashtra vs. Salman Salim Khan & Anr., 2005 RCrD. 117 (SC), Honble Supreme Court held that truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. 9. In the instant case, the Revisional Court set aside the order taking cognizance and issuing process to the extent of framing charge for the offence under Section 376/511 IPC on the ground that the version given by the petitioner and other witnesses is exaggerated. Such conclusion at the stage of taking cognizance and issuing process is not permissible. 9. In the instant case, the Revisional Court set aside the order taking cognizance and issuing process to the extent of framing charge for the offence under Section 376/511 IPC on the ground that the version given by the petitioner and other witnesses is exaggerated. Such conclusion at the stage of taking cognizance and issuing process is not permissible. In this view of the matter the order impugned to the extent of setting aside the order taking cognizance for the offence under Section 376/511 IPC cannot be sustained and is liable to be set aside. 10. Consequently, the revision petition is allowed. The order impugned dated 17.06.2005 passed by Additional Sessions Judge, Parbatsar in Criminal Revision No. 54/04 is set aside and the order dated 25.08.2004 passed by the trial Court is restored.