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2011 DIGILAW 1929 (RAJ)

Lalchand v. State of Rajasthan

2011-09-07

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—The Petitioner is aggrieved by the order dated 24.6.2009, passed by the Judicial Magistrate, First Class, Sambher Lake, District Jaipur whereby the learned Magistrate has framed the charges against the petitioner for offences under Sections 354, 452, 341, 323/34 IPC. The petitioner is also aggrieved by the order dated 1.2.2010 passed by the Additional District and Sessions Judge, Sambher Lake, whereby the learned Judge has upheld the order dated 24.6.2009 and has dismissed the petitioner's revision petition. 2. Briefly the facts of the case are that on 13.12.2004, the respondent No. 2, Mrs. Anju Sharma lodged a report at Police Station Renwal, wherein she claimed that on 12.12.2004, around 2:00 pm while she was sitting in her room, Lalchand entered her room and started using filthy language towards her. When she protested, he outraged her modesty by ripping her clothes. She raised a hue and cry whereupon her family members rushed to her rescue. But before her family members could do anything, Lalchand's family members, namely Mukesh, Prabhati Lal, Prabhati Lal s/o Bhura Mal, Madan Lal s/o Bhura Mal Bagad, Suresh s/o Madan Lal entered the room and assaulted the complainant's family members. She claimed that her husband, her elder brother-in-law, Nand Kishore, her mother-in-law, Mrs. Gita Devi, her elder sister-in-law, Mrs. Asha Devi were hurt. On the basis of this report, the police chalked out a formal FIR, FIR No. 177/04 for offences under 143, 452, 341, 323, 354/34 IPC. After a thorough investigation, the police submitted a chargesheet for offences under Sections 323, 341, 354, 452/34 IPC. However, when the learned Magistrate took cognizance of the offence, he took cognizance of offences only under Sections 323, 341, 452/34 IPC. The learned Magistrate did not take any cognizance for offence under Section 354 IPC. But subsequently, when the case was listed for framing of the charges, on 24.6.2009, the learned Magistrate suddenly took cognizance of the offence under section 354 IPC. Vide order dated 24.6.2009, the learned Magistrate also framed the charges for offences under Sections 354, 452, 341, 323/34 IPC. Since the petitioner was aggrieved by the said order, he filed a revision petition before the learned Judge. But vide order dated 1.2.2010, the learned Judge upheld the order dated 24.6.2009. Hence, this petition before this court. 3. Mr. Vide order dated 24.6.2009, the learned Magistrate also framed the charges for offences under Sections 354, 452, 341, 323/34 IPC. Since the petitioner was aggrieved by the said order, he filed a revision petition before the learned Judge. But vide order dated 1.2.2010, the learned Judge upheld the order dated 24.6.2009. Hence, this petition before this court. 3. Mr. Ramesh Chand, the learned counsel for the petitioner has vehemently argued that once the learned Magistrate had taken the cognizance for certain offences, and had not taken the cognizance for offence under Section 354 IPC, he could not have reviewed his earlier cognizance order. For, the power to review does not exist under the Criminal Procedure Code. In order to buttress this contention, the learned counsel has relied upon the case of Adalat Prasad vs. Rooplal Jindal & Ors. (2004) 7 SCC 328). Secondly, the learned Magistrate could not have taken the cognizance and could not have framed the charges without giving any opportunity to the petitioner to argue against the proposed charge. Since an adverse order was being passed, an opportunity of hearing should have been given to the petitioner. Thirdly, the learned Judge has erred in ignoring the fact that the learned Magistrate has reviewed his earlier order of cognizance. Thus, the learned Magistrate had exercised a power not vested in him. 4. On the other hand, Mr. Sharad Joshi, the learned counsel for the complainant, has strenuously argued that inadvertently, the learned Magistrate had forgotten to take the cognizance for offence under Section 354 IPC when he had passed the order of cognizance. Secondly, the statement of the prosecutrix is sufficient for the offence of Section 354 IPC to be made out. Therefore, the learned Magistrate had merely corrected a mistake made by him. Hence, the learned Magistrate did not review his earlier order. Thirdly, the act of taking cognizance later on was at worst an irregularity committed by the learned Magistrate. Fourthly, according to the impugned order both the prosecution and the petitioner were heard before the charges were framed. Thus, the petitioner cannot claim that he was denied an opportunity of hearing. Hence, the learned counsel has supported the impugned order. 5. Mrs. Alka Bhatnagar, the learned Public Prosecutor, has echoed the arguments of Mr. Joshi. Therefore, her arguments need not be reiterated. 6. Heard the learned counsel for the parties, and perused the impugned order. Thus, the petitioner cannot claim that he was denied an opportunity of hearing. Hence, the learned counsel has supported the impugned order. 5. Mrs. Alka Bhatnagar, the learned Public Prosecutor, has echoed the arguments of Mr. Joshi. Therefore, her arguments need not be reiterated. 6. Heard the learned counsel for the parties, and perused the impugned order. 7. A bare perusal of the impugned order clearly reveals that the learned Magistrate has noted the fact that in the earlier cognizance order he had not taken the cognizance of offence under Section 354 IPC. However, the learned Magistrate proceeded to take cognizance of the said offence. Immediately, thereafter the learned Magistrate heard the arguments of the parties, and framed the charges for offences under Sections 354, 452, 341, 323/24 IPC. 8. Although section 362 Cr.P.C. permits a court to correct a clerical or a mathematical error, but there is not a single provision in the Code which permits the learned Magistrate to add, or to alter the cognizance order once it is passed. Therefore, the learned Magistrate could not have sui moto altered the cognizance order by taking cognizance of offence under Section 354 IPC. To do so, is to review one's earlier order; it is to exercise a power not vested in the criminal courts. Hence, obviously the impugned order dated 24.6.2009 is unsustainable. 9. In the case of Adalat Prasad (supra), the Hon'ble Supreme Court was of the opinion that the Criminal Procedure Code does not confer the power to review an order on a Magistrate. Thus, in the present case, the learned Magistrate could not have reviewed his earlier cognizance order and could not have taken cognizance of offence under Section 354 IPC, vide order dated 24.6.2009. 10. Before framing a charge, sometime has to be given to the accused for preparing his arguments against the charge likely to be framed. Sections 239 and 240 Cr.P.C., are as under:- 239. When accused shall be discharged.-If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. 240. 240. Framing of charge.-(1) if, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. 11. Although a discretion has been bestowed upon the learned Magistrate to make such examination, if any, as he thinks necessary, but the Magistrate is duty bound to give the prosecution and the accused an opportunity of hearing. A fair opportunity of hearing, includes the right to be given sufficient time to prepare one's arguments. Therefore, the accused has to be given sufficient time to prepare his arguments against the case being marshaled out by the prosecution. However, in the present case, the learned Magistrate has taken the cognizance for offence under Section 354 IPC and without giving an opportunity to prepare the case, has framed the charge for offence under Section 354 IPC. Thus, the right of the accused to be given an opportunity of hearing has been violated. 12. As far as the order dated 1.2.2010 is concerned, the learned Judge has failed to consider the fact that by taking the cognizance of offence under Section 354 IPC - the cognizance not taken earlier- the learned Magistrate, in effect, has reviewed his own order. The learned Judge thus has failed to notice that the learned Magistrate has exercised a power not vested in him. Instead, the learned Judge has gone through the statements of the witnesses recorded under Section 161 Cr.P.C., and has concluded that since the statements are corroborated by the injury report, therefore, the learned Magistrate was justified in taking cognizance of offence under Sections 354, 452, 341, 323/34 IPC. Since the learned Judge has missed the cardinal issue involved in the case, the order dated 1.2.2010 is equally unsustainable. 13. Since the learned Judge has missed the cardinal issue involved in the case, the order dated 1.2.2010 is equally unsustainable. 13. However, in order to do complete justice to both the parties while quashing the orders dated 24.6.2009 and 1.2.2010, this Court invokes its power under Section 483 Cr.P.C., and remands the case back to the learned Magistrate for taking cognizance against the petitioner after objectively going through the police report and the document sent with it under Section 173 Cr.P.C. The said exercise shall be carried out within a period of one month from the date of receipt of certified copy of this judgment. 14. With these directions, the petition is, hereby, disposed off.