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2011 DIGILAW 2150 (RAJ)

Karan Singh v. State of Rajasthan

2011-10-12

SANDEEP MEHTA

body2011
JUDGMENT 1. - The present miscellaneous petition has been filed by the petitioner challenging the order dated 16.6.2006 passed by the Additional Sessions Judge No. 1, Chittorgarh in Criminal Revision No. 17/2006, whereby he set aside the order dated 17.10.2005 passed by the Additional Chief Judicial Magistrate No. 2, Chittorgarh taking cognizance of the offences under Sections 451, 427 and 323 I.P.C. against the respondent No. 2 in connection with Final Report No. 31/2005 arising out of F.I.R. No. 103/2004 of Police Station, Chanderiya, District Chittorgarh. 2. Succinctly stated, the facts necessary for disposal of this miscellaneous petition are set-out here-in-after: 3. I he petitioner tiled a complaint in the Court of the Additional Chief Judicial Magistrate No. 2, Chittorgarh on 12.3.2004 alleging inter alia that the respondent No. 2, who was posted as the Excise Inspector, Chanderiya, along with other 25 employees of Excise Department as also the employees of Local Excise Contractor, entered his compound and thereafter damage was caused to the cattle feed like maize, barley, cotton-seeds etc., which were packed in gunny bags. The utensils, which were being used for feeding the cattle, were also damaged and the complainant was abused and manhandled. Thereafter all the employees of the Excise Department entered into his house and lifted his maternal grand son Hanuman Singh, put him into a jeep and made him to sign blank papers. The complainant and Hanuman Singh were also made to sign blank papers under the threat that they were manufacturing illicit liquor and, therefore, a case would be registered for the offences under the Excise Act against Hanuman Singh. Thereafter Hanuman Singh was taken away in the jeep by these persons. The said complaint was forwarded to the Police Station, Chanderiya under Section 156(3) Cr.P.C., where F.I.R. No. 103/2004 was registered and the investigation commenced. The police, on the conclusion of investigation, found that no case was made out and accordingly submitted a Final Report in the matter. The complainant appeared before the Court below and submitted a protest petition and thereafter got examined himself, Lal Singh, Shanker Singh and Hanuman Singh in support of the complaint. The police, on the conclusion of investigation, found that no case was made out and accordingly submitted a Final Report in the matter. The complainant appeared before the Court below and submitted a protest petition and thereafter got examined himself, Lal Singh, Shanker Singh and Hanuman Singh in support of the complaint. Subsequently, the learned Magistrate, relying on the statements of these witnesses recorded in support of the protest petition, proceeded to take cognizance against the respondent No. 2 and Rajendra Pareekh, the Guard of the Excise Department, for the offences under Sections 451, 427 and 323 I.P.C. 4. Being aggrieved of the order taking cognizance, co-accused Rajendra Pareekh as well as the respondent No. 2 Nanu Ram approached the learned Additional Sessions Judge No. 1, Chittorgarh challenging the aforesaid order by way of filing two separate revision petitions and the learned Revisional Court, by his order dated 16.6.2006, has set aside the order passed by the learned Additional Chief Judicial Magistrate No. 2, Chittorgarh taking cognizance against the respondent No. 2 and co-accused Rajendra Pareekh and summoning them for the offences mentioned above. Being aggrieved of the aforesaid order dated 16.6.2006 passed by the Revisional Court, the petitioner -complainant has approached this Court by way of this miscellaneous petition challenging the order of the revisional Court whereby the order passed by the trial Court taking cognizance has been reversed. 5. Arguing for setting aside the order of the revisional Court, learned counsel for the petitioner has submitted that in this case the respondent could not have been given the benefit of Section 197 Cr.P.C. as the acts of the accused in committing the house trespass, mischief and voluntarily causing hurt were not the acts which could be said to be the acts done in the discharge of official duties. Thus, challenging the order of the learned Revisional Court, it has been submitted that there was no reason for the learned Revisional Court to have interfered in the well-reasoned order passed by the learned Magistrate taking cognizance against the accused. It has also been submitted that the complainant was not indulging in the acts of manufacturing /dealing in illicit liquor and as such the accused- respondent was not entitled to enter into the premises of the complainant and cause damage to his property. 6. It has also been submitted that the complainant was not indulging in the acts of manufacturing /dealing in illicit liquor and as such the accused- respondent was not entitled to enter into the premises of the complainant and cause damage to his property. 6. Per contra, learned counsel for the respondent No. 2 has submitted that in this case, there is positive material available on record by way of the final report of the police, as per which the respondent and other members of raiding party had conducted the search in the premises of the petitioner and on the search being made, appliances for manufacturing illicit liquor by Mahuwa flowers were recovered. Since the duty of the Excise Officer is to curb the manufacture and trade of illicit liquor, it is in the course of this process that the utensils etc., which were found being used in the working still for manufacture of hand-made liquor were destroyed. It is also submitted that a case under the Excise Act was registered against the maternal grand-son of the complainant - petitioner in relation to the search made in the compound of the complainant and it is as a counterblast that the present complaint has been filed. In support of the arguments, reliance has been placed on two decisions of this Court in (1) Nanu Rain v. State of Rajasthan & Anr., 2002 (3) WLN 704 and (2) Kishan Singh v. Peeru Lal, 1997 (2) RLW 1396 . 7. I have considered the arguments advance at the Bar and perused the impugned order. 8. A careful perusal of the order of the trial Court, i.e. the Additional Chief Judicial Magistrate No. 2, Chittorgarh, reveals that the Additional Chief Judicial Magistrate has proceeded against the accused-respondent simply on the basis of the allegations made in the complaint and the statements recorded under Sections 200 and 202 Cr.P.C. This order has been passed in total ignorance of the reasoning given by the police in arriving at the conclusion that no case was made out against the respondent because of the fact that the accused had conducted the raid on the premises of the complainant and in the process of that raid, the accused, while discharging their official duties, found the appliances for manufacture of illicit liquor which were destroyed. The finding of the police that the maternal grand-son of the complainant was arrested, in connection with recovery of illicit liquor has also not been touched at all by the trial Court in its order. This Court is of the opinion that while dealing with a case where there is a negative final report by the police, when the statements are given under Sections 200 and 202 Cr.P.C., then it is obligatory upon the Court considering the case to consider the reasons given by the police whilst arriving at a finding that no case is made out. As has been observed above, in this case, the respondent -accused and his official colleagues were performing their official acts whiles making recovery of illicit liquor destroying manufacturing utensils/equipments from the premises of the complainant. This fact has been found substantiated by the police in the investigation. As such whatever acts were done by the accused in the process of this recovery, were definitely the acts which were directly connected with the discharge of their official functions. 9. That apart, even if the complainant's allegations are to be accepted at the highest, then too the acts of the accused in making search of the premises of the complainant in the process of recovering illicit liquor, cannot be said to be offence (s) at all. Neither the entry of the accused in the house of the complainant is an offence under Section 451 I.P.C., nor destruction of the working implements of the still being used for manufacturing of illicit liquor can be said to be an act of mischief. Further more, the allegations of the complainant that the respondent made an assault on his maternal grand-son has not been substantiated by any medical opinion. Further more, the allegations of the complainant that the respondent made an assault on his maternal grand-son has not been substantiated by any medical opinion. Thus, ex facie the offence under Section 323 I.P.C. is also not made out from the admitted allegations of the complainant.The decisions of this Court which have been relied upon by the counsel for the respondent No. 2 are similar to the facts of the present case and on the relying on the reasoning given in the aforesaid two decisions, this Court has no hesitation in arriving at a conclusion that the order passed by the Revisional Court is neither illegal nor perverse and as such, does not call for interference by this Court in exercise of its powers under Section 482 Cr.P.C.Accordingly, this Court is of the opinion that the Revisional Court's order dated 16.6.2006 whereby he has set aside the order of the trial Court dated 17.10.2005 taking cognizance against the respondent No. 2 for the offences tinder. Sections 451, 427 and 323 I.P.C. is perfectly justified and no case for interference is call for in this well-reasoned order of the learned revisional Court.Accordingly, the miscellaneous petition, being bereft of a force, is hereby dismissed.Petition dismissed. *******