Research › Search › Judgment

Rajasthan High Court · body

2007 DIGILAW 1911 (RAJ)

Bhagwan Das Bhargava v. State and Hansraj Regar

2007-10-04

AJAY RASTOGI

body2007
JUDGMENT 1. - Instant petition under Section 482 Cr.P.C. is directed against order dated 10.4.2000 whereby Judicial Magistrate No. 7, Jaipur City took cognizance of offences under Section 3(1)(ii) of SC/ST (Prevention of Atrocities) Act, 1989 ('the Act') against petitioners in Criminal Case No. 105/2000, which was upheld by Additional Sessions Judge No. 1, Jaipur City in Criminal Revision No. 60/2000 vide order dated 26.4.2000. 2. Facts, in brief, relevant for controversy raised herein are that complainant was tenant of premise owned by petitioners. Civil suit was filed by petitioners on 31.8.1994 for recovery of arrears of rent due since 1.10.1991. Pendente suit, provisional rent was determined by civil Court vide order dated 2.6,1995 (Ann. 1) finding arrears of rent due of Rs. 20,593/- against tenant (respondent No. 2) to be deposited within 15 days - against which he preferred appeal but was dismissed vide order dated 2.12.1995 (Ann. 2) which was assailed by him in revision before this Court but with same fate vide order dated 23.9.1996 (Ann. 3). Since respondent No. 2 failed to pay single penny against arrears of rent provisionally, his defence was struck off, as a consequence whereof, civil suit itself was decreed vide judgment dated 3.12.1999 (Ann. 5), against which he preferred appeal wherein appellate Court directed respondent No. 2 (tenant) vide order dated 6.3.2000 to pay Rs. 1,500/- per month qua last outstanding rent and Rs. 400/- per month regularly, which according to Counsel for petitioners, could not have been deposited till instant petition was filed. 3. It is the case of petitioners (accused) that report was lodged by respondent No. 2 (tenant) on. 6.11.1997 out of frustration on failure in eviction proceedings and on such report, F.I.R. No. 70/1997 was registered on 10.11.1997 at I'S Bhatta Basti (Jaipur) for offence under Section 3 of the Act. Matter was investigated - in course whereof, statements of neighbours were recorded under Section 161 Cr.P.C. and after completion of investigation, Investigating Officer finally concluded that a false case was registered - as a consequence whereof, submitted negative final report (Ann. 6) on 31.12.1997 besides requesting to file complaint against complainant for offence under Section 182, I.P.C. Against final report (supra), protest petition was filed by respondent No. 2 (complainant) and statements under Sections 200 and 202, Cr.P.C. were recorded. 6) on 31.12.1997 besides requesting to file complaint against complainant for offence under Section 182, I.P.C. Against final report (supra), protest petition was filed by respondent No. 2 (complainant) and statements under Sections 200 and 202, Cr.P.C. were recorded. Without considering detailed final report, learned Magistrate proceeded merely on the protest petition and statements recorded thereon under Sections 200 and 202 Cr.P.C., and took cognizance of offence under Section 3(1)(ii) of the Act vide order dated 10.4.2000 (Ann. 8) and issued process for summoning petitioners - against which they preferred revision petition but was dismissed by Court of revision vide order impugned. Hence this petition. 4. Basic grievance raised by petitioners is that once final report was submitted - that too with a conclusion of Investigation Officer that since false case has been lodged at the instance of complainant, he be prosecuted for offence under Section 182 I.P.C. by filing complaint against him, it was all the more necessary for the learned Magistrate to be cautious for taking cognizance of offence under Section 3 of the Act merely on the protest petition and statements recorded thereon - that too without taking note of negative final report which was based on the material in accompanying documents and conclusions drawn by Investigating Officer thereon, to which learned Magistrate has not at all applied its judicial mind, therefore, the order taking cognizance is based on no prima facie material which may constitute a suspicion of an offence under Section 3 of the Act. Counsel further submits that Court of Revision has also not taken care of looking into negative final report prepared by Investigating Officer in details taking note of statements of neighbours recorded under Section 161, Cr.P.C., which too were required to be examined as to whether any offence is prima facie made out on the basis of material on record including final report, or not and having failed to do so, same infirmity has crept in at the instance of Court of Revision. 5. 5. Counsel for complainant and learned Public Prosecutor supporting the orders impugned, jointly submit that once the protest petition has been filed and statements are recorded under Sections 200 and 202, Cr.P.C. which if makes out a case of suspicion of offence being committed, that was sufficient to considered at the stage of taking cognizance, which alone are required to be taken note of by learned Magistrate while taking cognizance, and not the entire case diary depicting negative final report based on investigation and statements under Section 161 Cr.P.C., especially when facts contained in statements recorded under Sections 200 and 202 Cr.P.C. upon protest petition prima facie constitute offence under Section 3 of the Act and all such objections raised herein are available at the time of framing charge and so also at the stage of trial, as well. 6. I have considered contentions of Counsel for the parties and with their assistance, examined material on record. Narration of facts - reference whereof has been made in details (supra), certainly requires to be taken note of in the facts of instant case, that there was litigation going on between the parties and decree of eviction was passed against complainant (tenant); consequently, it appears that as a matter of retaliation, instant complaint was belatedly filed by tenant on 6.11.1997 against landlord-petitioners for an incident of 28.10.1997 and after registration investigation was made in details culminating into negative final report. It is pertinent to mention that statements of all neighbours were recorded under Section 161 Cr.P.C. during investigation, on which basis, Investigating Officer has drawn conclusions to submit negative final report - in furtherance thereof specifically pointing out it to be a false case being lodged at the instance of complainant - against whom prosecution for offence under Section 182, LP.C. was sought to be launched. 7. It appears from order of taking cognizance that the learned Magistrate has confined only with protest petition and statement recorded under Sections 200 and 202, Cr.P.C., but at the same time, has not considered negative final report submitted by police. However, learned Magistrate is expected to look into complete material including negative final report and conclusion drawn therein while taking cognizance. However, learned Magistrate is expected to look into complete material including negative final report and conclusion drawn therein while taking cognizance. It is true that negative final report is also part of case diary but from the order, impugned, it does not reflect as to whether it has been looked into by learned Magistrate while taking cognizance impugned. 8. In Sampat Singh v. State of Haryana, (1993) 1 SCC 561 , Apex Court observed ad infra : "It is not for a Court to keep track of an investigation and watch its day to day progress but, when an investigation culminates into a final report as contemplated under Section 173 of Cr.P.C. then the competent Court enjoins a duty within its authority sanctioned by law to scrupulously scrutinise the final report and the accompaniments by applying its judicial mind and take a decision either to accept or reject the final report." What has been observed above has taken note of in Abdul Rehman v. State, 1993 Raj.Cr.C. 611 : 1993 Cr.L.R. (Raj) 591 , and this Court has observed therein that the learned Magistrate has to consider negative final report as well as accompanying material and then concludes as to whether any offence has been committed or not, which is certainly missing in the instant case. This Court observed ad infra : "6. From the perusal of the order under consideration it is apparent that while the learned Judge has referred to injury report and statements of Jan Mohd., Sabir Mohd., and Abdul Aziz available on the record of investigation, it has not considered, the conclusions arrived at by the investigating agency and has applied its mind to the question why the final report submitted by investigating agency is not acceptable. In the absence of such consideration, in my opinion the order cannot be sustained and has to be quashed." 9. In view of observations (supra), since consideration of relevant material in instant case, is completely missing in the order impugned while taking cognizance by learned Magistrate, especially negative final report, it has certainly caused prejudice to the petitioners and as such, the order taking cognizance against accused petitioner is not legally sustainable. 10. In view of observations (supra), since consideration of relevant material in instant case, is completely missing in the order impugned while taking cognizance by learned Magistrate, especially negative final report, it has certainly caused prejudice to the petitioners and as such, the order taking cognizance against accused petitioner is not legally sustainable. 10. However, Counsel for complainant submits that in view of order of taking cognizance impugned being quashed by this Court, competent Court may launch prosecution of complainant under Section 182 I.P.C. keeping in view action sought by Investigating Officer in negative final report at the instance of either of parties, which should also be taken note of in favour of complainant while drawing final conclusions in instant application. 11. Before parting the judgment, since this Court has already examined merits of case (supra), is, therefore, of the view that complaint as suggested by Investigating Officer to be filed against. complainant for prosecution under Section 182 I.P.C., is not required to be further looked into in view of order impugned being quashed by this Court in instant petition and it would not be proper to now permit Investigating Officer or either of parties to proceed further against complainant as well, as it will be nothing but will cause further bitterness among the parties in retaliation which deserves to be deprecated is not required to be acted upon any further. 12. Consequently, miscellaneous petition succeeds and is hereby allowed alongwith stay petition. Order dated 10.4.2000 passed by Judicial Magistrate No. 7, Jaipur City and dated 26.4.2000 passed by Additional Sessions Judge No. 1, Jaipur City in Criminal Revision No. 60/2000, both are set aside - as consequence whereof, proceedings initiated against petitioners for offence under Section 3(1)(ii) of the Act in Criminal Case No. 105/2000 are also quashed with the direction that no action be taken against complainant in pursuance of negative final report for prosecution under Section 182, I.P.C. Record be sent back forthwith to Courts below.Petition allowed. *******