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2007 DIGILAW 445 (UTT)

SUB KARAN AND SIX v. STATE

2007-08-17

DHARAM VEER

body2007
JUDGMENT By means of this application moved u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), the petitioners have prayed for quashing the order dated 5.5.2000 and subsequent order dated 20.6.2000 in case No. 648 of 2000 State Vs. Sub Karan & others, u/s 147/379/504/506 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and 3/10 of Schedule Castes & Schedule Tribes (Prevention of Atrocities Act) 1989 (hereinafter to be referred as S.C./S.T.), pending in the court of Chief Judicial Magistrate, Tehri Garhwal. 2. In brief, the facts of the case are that Respondent No. 2 Bhagat Dass lodged a FIR in the P.S. Tehri, Distt. Tehri Garhwal on 09.12.1998 at 13:00 hours with the allegations that he has a field in Village Patta, Patti Sarjyula Khata No. 216 and in total 18 fields are there in which he is in possession. He has sowed the seeds of Wheat, Barley, ‘Masoor’ and ‘Sarson’ in his field about one month ago. On 30.11.1998 at about 10/11 A.M., the applicants entered into the fields of complainant and accused Sub Karan and Virendra ploughed the said fields and destroyed the crops sown by the Respondent No. 2 and they also stolen the grass and wood from his field. When his son Harish and his daughter in law Smt. Basi Devi saw accused Virendra and Sub Karan while ploughing the field and other accused Laxmi, Purna Devi, Tara Devi, Km. Bina and Ramlal ploughing the field and cutting the woods, they stopped them to do so. Then the applicants have hurled abuses on the son and daughter in law of the complainant. They also stated that they will finish them and also told that they were of lower caste and this land does not belong to you. The applicants in order to humiliate them, repeatedly calling them as ‘Domra’ and ‘Chuda Chamar’. Applicants Sub Karan and Virendra were armed with Lathis and rest of the applicants wer armed with Lathis, Darantis and Kuntla and also said that if they will again come in the field, they will be killed. After that they also gave blows of fists and also pushed the son and daughter in law of the complainant. Then due to fear, son and daughter in law of complainant came back. It was also stated that the applicants also took grass of Rs. After that they also gave blows of fists and also pushed the son and daughter in law of the complainant. Then due to fear, son and daughter in law of complainant came back. It was also stated that the applicants also took grass of Rs. 1,000/- and wood of Rs. 500/- by way of theft. The witnesses of the incident were Vijal Das, Harish and Smt. Vasi Devi etc. On 30.11.1998, son of complainant came to him at Tehri and informed him about the incident but due to late time, he could not go on that day. On 1.12.1998, he lodged a report before the court of S.D.M. and the order for investigation was passed, but the police had not taken any action and it was also stated that the applicant wanted to get possession on his old broken house. 3. Thereafter, the matter was investigated by the I.O. After completing the investigation, the I.O. submitted the Final Report on 15.12.1998 before C.J.M., Tehri, Distt. Tehri Garhwal. Against that Final Report, Respondent No. 2 had filed a protest petition before CJM, Tehri, Distt. Tehri Garhwal on 28.4.2000 and in support of his protest petition, he has filed an affidavit with the averments that he has a field in Village Patta, Patti Sarjyula Khata No. 216 and in total 18 fields are there in which he is in possession. He has sowed the seeds of Wheat, Barley, ‘Masoor’ and ‘Sarson’ in his field about one month ago. On 30.11.1998 at about 10/11 A.M., the applicants entered into the fields of complainant and accused Sub Karan and Virendra ploughed the said fields and destroyed the crops sown by the Respondent No. 2 and they also stolen the grass and wood from his field. When his son Harish and his daughter in law Smt. Basi Devi saw accused Virendra and Sub Karan while ploughing the field and other accused Laxmi, Purna Devi, Tara Devi, Km. Bina and Ramlal ploughing the field and cutting the woods, they stopped them to do so. Then the applicants have hurled abuses on the son and daughter in law of the complainant. They also stated that they will finish them and also told that they were of lower caste and this land does not belong to you. The applicants in order to humiliate them, repeatedly calling them as ‘Domra’ and ‘Chuda Chamar’. Then the applicants have hurled abuses on the son and daughter in law of the complainant. They also stated that they will finish them and also told that they were of lower caste and this land does not belong to you. The applicants in order to humiliate them, repeatedly calling them as ‘Domra’ and ‘Chuda Chamar’. Applicants Sub Karan and Virendra were armed with Lathis and rest of the applicants were armed with Lathis, Darantis and Kuntla and also said that if they will again come in the field, they will be killed. After that they also gave blows of fists and also pushed the son and daughter in law of the complainant. Then due to fear, son and daughter in law of complainant came back. It was also stated that the applicants also took grass of Rs. 1,000/- and wood of Rs. 500/- by way of theft. The witnesses of the incident were Vijal Das, Harish and Smt. Vasi Devi. 4. After examining the report submitted by the police and the affidavit and the protest petition, the learned CJM, Tehri Garhwal has passed an order on 5.5.2000 and has summoned the applicant u/s 147/379/504/506 I.P.C. and u/s 3/10 of S.C./S.T. Act. The applicants were summoned for 20.6.2000, but since the applicants were not present in the court on the date fixed, then the learned CJM has issued bailable warrants against the applicants on 20.6.2000. Against the said orders dated 5.5.2000 and 20.6.2000, the applicants have filed the present application before this Court. 5. A counter affidavit has been filed on behalf of Respondent No. 1/State, in which it has been stated that learned Magistrate after perusing the FIR as well as statements of the witnesses and affidavit of the complainant, came to the conclusion that triable offence is made out against the accused persons, as such by order dated 5.5.2000, accused were summoned. It is also stated that in view of judgment of Supreme Court in case reported in AIR 1989 S.C. Page 885, it has been held that the Magistrate is not bound to accept procedure u/s 200 and 202 Cr.P.C. if he is not satisfied with the final report submitted by police. It is also stated that in view of judgment of Supreme Court in case reported in AIR 1989 S.C. Page 885, it has been held that the Magistrate is not bound to accept procedure u/s 200 and 202 Cr.P.C. if he is not satisfied with the final report submitted by police. It is also stated that Magistrate is competent to summon the accused persons without adopting procedure u/s 200 and 202 Cr.P.C. It has further been stated that by order dated 5.5.2000, the Magistrate has recorded his prima facie satisfaction about the commission of offence by the accused persons. 6. In reply to the contents of counter affidavit, the applicants have filed rejoinder affidavit in which it has been stated that CJM, Tehri Garhwal has passed the order after relying on the statements of the witnesses recorded by the I.O. during the investigation u/s 161 Cr.P.C. but the same were not available when the notice of said application was given. The learned Magistrate after perusing the FIR and the statement recorded u/s 161 Cr.P.C. and the affidavit submitted by the complainant, the learned Magistrate was of the view that prima-facie offence is made out, though after recording the statement u/s 161 Cr.P.C., the final report was submitted. Despite this, these statements were taken into consideration before passing of the order-dated 5.5.2000. So far as the affidavits are concerned, the learned Magistrate committed a manifest illegality by taking into consideration the affidavits and then to draw a conclusion that prima-facie offence is made out. It is further stated that the learned Magistrate instead of recording the statements u/s 200 and 202 Cr.P.C., took into consideration, the affidavits of complainant therein for the purposes of drawing conclusion that offences are made out against the applicants. Further, the FIR does not disclose any offence and not only this even as per the statement recorded u/s 161 Cr.P.C., no offence is made out and therefore, it is clear that the learned Magistrate failed to consider all these aspects and only on the basis of affidavits submitted by the complainant, passed the order summoning the applicants. 7. I have heard Sri Rakesh Thapliyal, learned counsel for the applicant and Sri Harish Pujari, learned Addl. GA for the State. 7. I have heard Sri Rakesh Thapliyal, learned counsel for the applicant and Sri Harish Pujari, learned Addl. GA for the State. I have also perused the orders passed by learned Chief Judicial Magistrate on 5.5.2000 and 20.6.2000, as well as Protest Petition, Affidavit and other papers available in the file. 8. Learned counsel for the applicants submitted that the learned Magistrate has passed orders in a technical manner and has not applied his mind while passing the impugned orders and the said orders are not as per law. 9. The learned CJM, Tehri Garhwal has passed the orders dated 5.5.2000 and 20.6.2000 after perusal of the affidavit and the protest petition filed by the complainant and also after the perusal of the case diary and the statements recorded by the I.O. Thus, the learned CJM, Tehri Garhwal has not committed any error and he has passed the orders under challenge as per law. 10. Furthermore, in a judgment rendered by Hon’ble Apex Court in the case of Minu Kumar & another v. State of Bihar & others reported in (2006) 2 SCC (Cri) 310, it has been held in para 11 as under :- “11. 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 again has option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; 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. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an option 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. (See India Carat (P) Ltd. V. State of Karnataka)”. 11. In view of the above quoted judgment, it is clear that the three courses are open before the Magistrate (1) he may accept the report and drop the proceeding; 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). In the present case, the learned Magistrate by adopting second course, proceeded to summon the applicants u/s 147/379/504/506 of IPC and 3/10 of S.C./S.T. Act by fixing the date as 20.6.2000. Hence, in view of judgment of Hon’ble Apex Court in case of Minu Kumar (supra), the order passed by the learned Judicial Magistrate appears to be perfectly justified and as per law. 12. For the reasons recorded above, there is no force in the application. The application C482 is devoid of merit and is hereby dismissed. Interim order dated 24.7.2000 stands vacated.