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2011 DIGILAW 2155 (RAJ)

Narsingh v. State of Rajasthan

2011-10-12

SANDEEP MEHTA

body2011
JUDGMENT 1. - Heard learned counsel for the parties. 2. This misc. petition has been filed by the petitioners challenging the order dated 17.5.2007 passed by Additional Chief Judicial Magistrate No.2, Chittorgarh taking cognizance and summoning against the petitioners for offences under Sections 366 and 366/120B I.P.C. along with co-accused Rooplal in Criminal Regular Case No.84/2007 in relation to FR No.101/2005 as upheld by the order dated 29.10.2007 passed by the Additional Sessions Judge No.1, Chittorgarh. 3. Assailing the orders impugned, learned counsel for the petitioners submitted that in this case, the principal accused Roop Lal was the person who had abducted the girl Mst. Mohan. It has been submitted that the police after thorough investigation gave a final report in the matter and the learned Magistrate whilst taking cognizance against the petitioners, has not considered the reasons given by the police in giving the final report. It has further been submitted that in the statements of abducted girl recorded under Section 161 Cr.P.C., there was no mention about the petitioners having participated in the abduction of the girl and as such, cognizance against them was bad in the eye of law. It has also been submitted that there was a grave contradiction in the statements of the girl recorded under Section 161 and under Section 164 Cr.P.C. and as such, the cognizance order deserves to be quashed. 4. Per contra, learned public prosecutor as well as learned counsel for the respondent have supported the orders impugned. 5. I have considered the arguments advanced at the bar and perused the orders impugned as well as the statements of the abducted girl recorded under Section 164 Cr.P.C. 6. From a perusal of the above and the statement of Section 164 Cr.P.C., it becomes apparent that there is a specific allegation against the petitioners regarding having assisted the principal accused Roop Lal in the abduction of the girl. Simply because such allegations were not made in the statement under Section 161 Cr.P.C., that by itself cannot be a ground to interfere in the order taking cognizance. The order taking cognizance is an ex-parte order and all that is required at the stage when the cognizance is being considered, is the formation of the opinion of the learned Magistrate regarding existence of a prima-facie case. The order taking cognizance is an ex-parte order and all that is required at the stage when the cognizance is being considered, is the formation of the opinion of the learned Magistrate regarding existence of a prima-facie case. As has been observed above, the abducted girl in her statement under Section 164 Cr.P.C. has made a specific allegation regarding participation of the petitioners in the offence of abduction along with the co-accused Roop Lal, as such, it cannot be said that the order taking cognizance has been passed on nonexistent material. 7. The Hon'ble Apex Court in the case of Radhey Shyam v. Kunj Behari reported in AIR 1990 SC 121 has held that the order taking cognizance or order framing charge cannot be quashed on the ground of discrepancy in the statements of the witnesses. The Hon'ble Apex Court has observed thus, "8. On a consideration of the matter, we find the grievance of the appellants to be well-founded. The High Court has failed to give due consideration to the fact that the investigation of the case had been handed over to the C.I.D. because of unsatisfactory investigation by the authorities of Todabhim Police Station. As such the C.I.D. was under an obligation to examine once again the witnesses already examined and to examine other persons whom the original investigating agency ought to have examined but had failed to examine. In the very nature of things, a fuller and effective investigation by the C. I. D. is bound to bring out several materials not discovered or recorded by the first investigating agency. As to how much acceptance has to be given to the investigation done by the C. I. D. and the statements of witnesses recorded by its officers is a matter which can be determined only after the trial is held and the witnesses and the investigating officer adduce their evidence on oath. As regards the nonmention of the date of recording of the statement of Sravan Lal, a finding can be rendered on the omission only after the C. I. D. officer who recorded the statement is given opportunity to explain the reason for the omission. In so far as the High Court's view that "in the interest of justice, it is the duty of the Court under section 482, Cr. In so far as the High Court's view that "in the interest of justice, it is the duty of the Court under section 482, Cr. P. C. to go into the merits of the evidence and appreciate correctly the documents and the statements filed by the police", we may only refer to Mohd. Akbar Dar v. State of Jammu and Kashmir. 1981 Supp SCC 80: ( AIR 1981 SC 1548 ) , where it has been pointed out that at the stage of framing of charges, meticulous consideration of evidence and materials by Court is not required. 9. The High Court has also deemed it necessary to quash the charge against respondents 1 to 3 because in its opinion the evidence proposed to be adduced by the prosecution, even if fully accepted, cannot show that respondents 1 to 3 committed any offence and referred in that behalf to the decision in State of Bihar v. Ramesh Singh, (1978) 1 SCR 257 at p. 259 : ( AIR 1977 SC 2018 at p. 2019) . We find that the High Court's conclusion about the inadequacy of the evidence against respondents 1 to 3, besides being a premature assessment of evidence, is also attributable to the wrong premises on which the High Court's reasoning is based." 8. In this view of the matter, this Court is of the opinion that the trial court has not committed any illegality or error in taking cognizance against the petitioners. That apart, the order taking cognizance has also been confirmed in the revision by a well reasoned order. Therefore, no case for interference under Section 482 Cr.P.C. is made out in this matter. 9. Resultantly, the misc. petition, being bereft of force, is hereby dismissed. The stay order granted by this Court on 13.10.2007 is hereby vacated. The stay petition also stands dismissed. 10. The trial court is directed to proceed with the matter forthwith.Petition Dismissed. *******