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2006 DIGILAW 386 (RAJ)

Sohan Lal v. State

2006-02-06

GOPAL KRISHAN VYAS

body2006
Judgment Gopal Krishan Vyas, J.- By the present petition under Section 482, CrPC the petitioners seek to challenge the order dated 17.01.2004 passed by the Judicial Magistrate, Merta City (the trial Court, hereinafter) taking cognizance for offence under Section 500, IPC against the petitioners as well as order dated 23.06.2004 passed by the revisional Court. 2. According to facts narrated by the petitioners it is submitted that non-petitioner No. 2 Ganpat s/o Kalu Ram, b/c Ghanchi filed complaint on 10.07.2002 alleging that petitioners being Panch of the Ghanchi Samaj committed offence for maligning the prestige of non-petitioner No. 2. It is submitted that in the complaint filed by him before the trial Court, it was specifically contended that he is member of Ghanchi Samaj and he raised voice against unnecessary expenditure for solemnising post-obituary rites with big mealings etc. The non-petitioner complainant alleged that since he raised voice for social reformation against alleged that since he raised voice for social reformation against onerous conventions the petitioners who are members of the samaj passed resolution for ostracising him from the samaj on 16.06.2002. It was alleged that he protected the son of one Bhaghu Ram who was low-paid employee and was directed by the samaj panchas to solemnise the death rites of his late father by holding mrityu-bhoj and manage food for 300 persons of the samaj after death of his father Bhabu Ram. It was also stated in the complaint that on 21.06.2002, the petitioners conducted a meeting of the society at the house of Suwalal and passed resolution to expel the non-petitioner Ganpat from the society and impose fine of Rs. 51,000/-for militating against the decision of the samaj. It is also stated in the complaint by the non-petitioner that he has been threatened by the samaj Panchayat and aggrieved by their action a registered notice was sent to the petitioners, in Para 5 whereof , it is alleged that the petitioners in reply told that they will give reply to the notice that he has not been expelled from the society but they will restrain other members of the society not to associate with him and not to have marriage links with his family and they will also ask the members of the society not to invite him to their social functions. In Para 6, it is specifically alleged that on 09.07.2002 in the night, at about 8 PM., while he was sitting in an hotel and having tea there, at that time, Banshi Lal, Ram Bux and Sohan Lal came there and asked Iqbal who was sitting beside him why he was associating with a person expelled from the community. It is further stated that Iqbal was told by those persons that none of the members of the samaj keeps company with him. At that time, it was objected by him. In support of the complaint filed by him for offences under Sections 500, 501, 469 and 120-B, IPC, statements of complainant Ganpat, witnesses Shakir Mohammed, Iqbal and Raju Borana were recorded by the trial Court and photostat copy of representation filed by the non-petitioner before the District Collector, Nagaur was also exhibited alongwith postal receipt and A.D. receipts. The copy of notice sent by him to the petitioners Exhibit-4 was filed alongwith A.D. receipts. 3. The learned Magistrate, after taking into consideration the complaint filed by the non-petitioner and statements of the witnesses, proceeded to take cognizance against the petitioners vide order dated 17.01.2004 for offence under Section 500, IPC, and, process was accordingly issued. Against the order dated 17.01.2004, the petitioners filed revision petition refuting the allegations levelled against them by non-petitioner complainant Ganpat. The petitioners alleged before the revisional Court that the complainant has approached the Court with entirely false story. It was submitted by the petitioners that when the non-petitioner gave them notice it was replied by them and news-item published in the news-paper on 22.06.2004 was also sent with the reply to the notice through their Advocate Madhusudan Joshi. The petitioners submitted with the revision petition copy of news publication published in news-paper Bhaskar on 22.06.2002 and another document which is photostate copy of communication dated 23.06.2002 sent by the SHO, Police Station Merta City to the Deputy District Collector, Merta was also submitted with the revision petition. It was contended in the revision petition by the petitioners that the complaint is misconceived and false and the petitioners have already openly controverted the charges levelled against them by the complainant in his notice sent to them. It was specifically averred by them before the revisional Court that they have publicised their counter to the charges levelled against them in the news-paper. It was specifically averred by them before the revisional Court that they have publicised their counter to the charges levelled against them in the news-paper. However, the revisional Court dismissed the revision petition filed by the petitioners by its order dated 23.06.2004. Hence, this petition under Section 482, CrPC. 4. It is contended by learned Counsel for the petitioners that cognizance taken against them is totally illegal and the complaint itself is based on concocted story concealing the fact that in reply to the notice it was specifically replied by the petitioners that the allegations are totally false and no such resolution was passed nor any meeting was conducted. It is contended that in reply to the notice the petitioners categorically denied having ever taken any resolution against the complainant. Moreover, learned Counsel for the petitioners contended, the complainant himself has committed offence while meeting his wife Pappu Devi and demanded dowry in the year 1994, in connection with that case, he was arrested and challan was filed against him; and, thereafter a compromise was arrived at in between the parties. It is stated that ever since the compromise arrived at in between the parties, he is repeatedly threatening his wife and wants to give divorce and, his father-in-law, one of the petitioners before the Court, is also reputed member of the community. It has been submitted that the members of the society are protecting Smt. Pappu Devi whom the complainant has ever since been threatening unnecessarily and demanding dowry. It is contended that only to take revenge upon the reputed members of the community false notice has been given by the complainant. It is submitted that in the news-paper also the son of late Bhagu Ram clarified the position and made it known that the story cooked up by the complainant is entirely false. Learned Counsel for the petitioners, therefore, urged that there was no material on the basis of which the trial Court could have proceeded to take cognizance against the petitioners for offence under Section 500, IPC. It is emphatically stated by learned Counsel for the petitioners that neither the petitioners have expelled the non-petitioner from community nor have they given any information to the reporter of the news-paper Dhola Maru. It is emphatically stated by learned Counsel for the petitioners that neither the petitioners have expelled the non-petitioner from community nor have they given any information to the reporter of the news-paper Dhola Maru. Learned Counsel for the petitioners emphatically submitted that upon representation filed by the complainant enquiry was made by the police at Merta City and communication was sent to the Deputy District Collector in which the submissions of the petitioners were found to be correct. It is submitted that Babu Lal and Raja Ram are real brothers of non-petitioner No. 2 and other persons are his close friends and, therefore, the cognizance taken against the petitioners on the basis of their testimony is illegal. 5. In support of the submissions, learned Counsel for the petitioners cited Judgment s of this Court, reported in 1999 CrLR 797 (Raj.) Ghanshyam Brijvasi vs. State of Rajasthan. In that case, cognizance taken for offence under Section 500, IPC was quashed on the ground that there is absolutely no material against the petitioner that he has sent memorandum containing defamatory material against the complainant in that case. In the said Judgment , reliance has been placed on the Judgment of the Supreme Court, reported in AIR 1984 SC 1164 , Monmohan vs. Shri Yash, in which it was observed that a news item without any further proof of what had actually happened, through witnesses, is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible. With reference to the observations of the apex Court, learned Counsel for the petitioners contended that in the instant case there is no new item, no defamatory publication and, moreover, refutal to the allegations of the complainant was made publicly known by the petitioners through news-item and, therefore, ingredients for constituting offence under Section 500,IPC are not at all made out for taking cognizance against the petitioners. It is further contended that no such resolution as alleged by the complainant was either taken by the petitioners nor the complainant has filed any proof of such resolution being taken by the society. It is urged by the learned Counsel that in similar circumstances, in the aforesaid case of Ghanshyam Brijwasi vs. State, this Court set aside the order of cognizance. 6. Learned Counsel for the petitioners next relied upon the decision of this Court, reported in 1997 CrLR 575 (Raj.), Phool Chand & Ors. vs. Baktawar Mal. in that case also, order of taking cognizance for offence under Section 500,IPC was set aside. Learned Counsel for the petitioners contended that in the case of Phool Chand & Ors., resolution was, in fact, adopted for ex-communication of the complainant, however, this Court, in exercise of jurisdiction under Section 482, CrPC, found that the ingredients for constituting offence under Section 500, IPC are not satisfied and the Court observed that even by passing the resolution the members only enjoined upon other members of the community not to have contracts with the complainant and by doing so the petitioners (in that case) and others cannot be said to have committed any offence under Section 500, IPC. Learned Counsel for the petitioners, therefore, vehemently argued that in these facts and circumstances this Court should exercise jurisdiction under Section 482, CrPC to secure the ends of justice and to prevent abuse of the process of Court. 7. Learned Counsel for the petitioners lastly placed reliance upon the Judgment s of the Supreme Court reported in JT 1997 (1) SC 657 Krishnan & Anr. vs. Krishnaveni & Anr., 2005 (3) SRJ 407, Netai Dutta vs. State of West Bangal. 8. On the other hand, learned Counsel for the non-petitioner complainant raised preliminary objection that there is bar under Section 397(3) CrPC, for second revision and this petition under Section 482, CrPC is nothing but a second revision petition challenging the order passed by the learned Sessions Judge, Merta while exercising revisional powers. It is submitted that there is sufficient evidence against the petitioners for taking cognizance and statements were also recorded by the learned Magistrate, therefore, no interference in the order of cognizance is required to be made. He has placed reliance upon the Judgment s reported in RLR 1989 (1) p. 898, Babuda & Ors. It is submitted that there is sufficient evidence against the petitioners for taking cognizance and statements were also recorded by the learned Magistrate, therefore, no interference in the order of cognizance is required to be made. He has placed reliance upon the Judgment s reported in RLR 1989 (1) p. 898, Babuda & Ors. vs. State of Rajasthan & Ors., RLR 1992 (1), p. 640, Ram Niwas vs. Munni Devi & Anr. Attempting to take support from these Judgment s, the learned Counsel raised objections that cognizance taken by the learned Magistrate cannot be interfered with and taking the cognizance of offence is area exclusively within the domain of the Magistrate. He contended that the High Court cannot interfere under Section 482, CrPC, in the order of taking cognizance and argued that this petition under Section 482, CrPC is required to be treated as second revision which, per law, barred by Section 397 (3). Learned Counsel for the non-petitioner emphatically contended that there is sufficient material against the petitioners for taking cognizance of offence under Section 500, IPC, against them. He has, therefore, submitted that the petition may be dismissed. 9. True it is, Section 397(3) of the Code of Criminal Procedure lays down embargo upon entertainment and consideration of a second revision petition; but while entertaining a petition under Section 482, CrPC, this Court does not, in fact, exercises any revisional jurisdiction and the power of the High Court under Section 482, CrPC emanates from the legislative intent of the High Courts inherent continuous supervisory jurisdiction. The power can even be suo motu exercised by the High Court. When the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process of the Court and to prevent miscarriage of justice or to correct irregularities/incorrectness committed by the inferior criminal Court in its juridical process or illegality of sentence or order. What Section 397(3) of the Code of Criminal Procedure bars is laying simultaneous revisional applications to the High Court and the Court of Sessions and, the underlying purpose is, to prevent unnecessary delay and multiplicity of proceedings. What Section 397(3) of the Code of Criminal Procedure bars is laying simultaneous revisional applications to the High Court and the Court of Sessions and, the underlying purpose is, to prevent unnecessary delay and multiplicity of proceedings. In this view of the matter, the contention of non-petitioner No. 2 that the petition requires to be treated as second revision petition is bereft of merit and does not survive in law. It is always open to the High Court to exercise jurisdiction under Section482, CrPC, to secure the ends of justice and prevent abuse of the process of Court. In this regard the proposition of law has been explicitly laid down in Krishnan vs. Krishnaveni & Anr., JT 1997 (1) SC 657, wherein, the Supreme Court held as under:- “The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal Court in its juridical process or illegality of sentence or order.” Their Lordships of the Supreme Court further observed that: “The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of Section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of sessions so as to prevent unnecessary delay and multiplicity of proceedings.” 10. Thus, the objection of the learned Counsel for the non-petitioner complainant has no basis. 11. The object of Section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of sessions so as to prevent unnecessary delay and multiplicity of proceedings.” 10. Thus, the objection of the learned Counsel for the non-petitioner complainant has no basis. 11. Learned Counsel for the complainant contended that it is always within the domain of the Magistrate to take cognizance upon the material available on record. It is true that upon the material on record, after application of mind, the Magistrate can take cognizance; but, at the same time, the superior Courts have power to judicially examine the order passed by the Magistrate taking cognizance. There is neither bar nor restriction envisaged by the Code of Criminal Procedure to forestall any judicial scrutiny either by the superior Court or in exercise of inherent power by the supervisory Court. The afore- quoted proposition of law only makes it manifest that the High Court has continuous power of supervision and interference where it notices that there has been failure of justice or misuse of judicial mechanism or procedure, or that, the order is not correct. Therefore, the contention of the learned Counsel that the order for taking cognizance falls within the exclusive domain of the Magistrate and cannot thus be interfered with does not find favour with the Court. 12. While examining the material on record on the basis of which the learned Magistrate proceeded to take cognizance against the petitioners for offence under Section 500, IPC, it is found that the complainant filed notice sent by him to the petitioners with the complaint but concealed a lot from the notice of the Court. A reply was sent by the petitioners through their Advocate Madhusudan Joshi to the complainant to his notice; and, the petitioners have filed news-item published on 22.06.2002 refuting the allegations levelled by the complainant against the petitioners; and, so also news item published in news paper Bhaskar dated 21.06.2002, at page 7, was also concealed by the complainant and was not brought to the notice of the Court. From perusal of the complaint and documents filed alongwith the complaint, it is manifestly clear that there is no allegation against the petitioners for passing the impugned resolution; there is no material on record with regard to the so-called meeting of the society members which is alleged to have been held on 16.06.2002 and, further on 21.06.2002. There is no statement of the son of late Bhaguram as to who died and for whom the complainant alleges to have raised his voice against the community decision. The only statement recorded by the Court is with regard to the fact mentioned in Para 6 of the complaint. I have also perused Para 6 of the complaint and by a perusal thereof , relying upon the Judgment s of this Court reported in 1997 CrLR 575 (Raj.) Phool Chand & Ors. vs. Baktawar Mal & 1999 CrLR 797 (Raj.), Ghanshyam Brijvasi vs. State of Rajasthan, no offence under Section 500, IPC is made out. Moreover, the allegations in the complaint by itself do not constitute the ingredients to make any offence under Section 500, IPC without the aid of independent corroboration or further testimony available on record. On appreciation of the material on record, it is obvious that cognizance has been taken by the learned Court below without any substantial basis and, as observed by the Supreme Court, the material available on record by itself is not sufficient to take cognizance. It was the duty of the complainant that while filing the complaint entire facts ought to have been brought to the notice of the Court. Admittedly, the documents viz., reply to the notice and paper publication were not brought to the notice of the trial Court. In the instant case, if the complainant alleged offence under Section 500, IPC against the petitioners on the basis of the samaj meetings and passing of the resolution against him, it was his duty to substantiate his allegations by sufficient evidence; but, in fact, no material whatsoever was produced by the complainant either about the meetings or about passing of the resolution by the samaj members against him. Even otherwise, as per the statements of prosecution witnesses Ganpat, Shakir, Iqbal and Raju Borana no offence is made out. Even otherwise, as per the statements of prosecution witnesses Ganpat, Shakir, Iqbal and Raju Borana no offence is made out. Moreover, all these witnesses appear to be simply interested witnesses whose testimony cannot be said to be trustworthy in the absence of substantial material to constitute offence under Section 500, IPC. Therefore, cognizance of offence under Section 500, IPC cannot be taken against the petitioners merely on the saying of the complainant. 13. In the result, this petition is allowed. The impugned order of taking cognizance against the petitioners dated 17.01.2004 and order dated 23.06.2004 passed by the revisional Court are set aside.