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2011 DIGILAW 2444 (RAJ)

Devendra Singh v. State of Rajasthan

2011-11-15

NISHA GUPTA

body2011
JUDGMENT 1. - This petition has been filed against the order dated 8.7.2009 whereby the application of the petitioner for taking cognizance against the accused-respondent has been rejected and the order has been confirmed by the revisional Court. 2. The brief facts of the case are that the present petitioner lodged an F.I.R. at Police Station Keshrisinghpur against Surjeet Singh and others and the same was registered as F.I.R. No. 113/2008. The F.I.R. was registered and statement of the petitioner was recorded in the Government Hospital and all the details of the incident have been narrated in the said statement. After investigation, the police submitted a negative report on which a protest petition was filed by the present petitioner and the trial Court examined the present petitioner and two eye-witnesses Darshan Singh and Devendra Singh and after hearing the matter, the trial Court has accepted the negative report. The present petitioner filed revision petition, which too was dismissed. 3. Heard learned counsel for the petitioner, learned Public Prosecutor and the learned counsel for the respondent and perused the impugned order. 4. The main contention of the present petitioner is that the trial Court, while passing the impugned order, has gone into the evidence minutely and has weighed the entire evidence as if he is deciding the matter, which was not permissible at the stage of taking cognizance and the order is against the settled proposition of law. The revisional Court has also ignored the settled proposition of law and also had taken the defence into consideration. 5. It has also been submitted that there are clear allegations against the accused person in the F.I.R., his statement recorded in the Court and his statement is also corroborated by the statements of eye-witnesses and injury report and this evidence was sufficient for taking cognizance, whereas the trial Court has considered the fact that there was delay in lodging F.I.R. The trial Court also considered the site plan and minute details of the investigation and contradictions in the statements of the witnesses. Even defence version was also considered, which is against the settled proposition of law. 6. Learned counsel for the respondent submitted that there is no illegality in the impugned orders and this petition is by way of second revision and is not maintainable. 7. Even defence version was also considered, which is against the settled proposition of law. 6. Learned counsel for the respondent submitted that there is no illegality in the impugned orders and this petition is by way of second revision and is not maintainable. 7. It is not in dispute that the impugned order dated 8.7.2009 has already been assailed in the revision petition and against the revisional order, this petition has been filed. But, looking at the fact that the trial Court has acted against the settled proposition of law. It is also not in dispute that at the stage of taking cognizance, the defence of the accused could not be considered and the present petitioner has relied upon the decision rendered in Halimuddin Ahmad v. Ashoka Cement Ltd., 1976 Cri.L.J. 449 , wherein it has been held as under:- "The defence of the accused is not a material, which has to be considered in the matter of taking cognizance or issuing process against the accused." 8. Hence, in the light of the above, the impugned orders are perverse. At the same time, learned counsel for the petitioner has also relied upon the judgment rendered in Ajay Mehra & Anr. v. Durgesh Babu & Ors., (2002) 9 SCC 709 , wherein it has been held as under : "The Magistrate has merely taken cognizance of the offence and has issued process and therefore at this stage the question of consideration of other materials does not arise and the Court will have to take a view taking into account the fact that all the statements made in the complaint as well as the statement made under Section 202, if taken on its face value, an offence can be said to have been made out. Applying that standard, we are of the considered opinion that there is no error in taking cognizance of the offence, though we make it clear that it would be open to the accused while framing charge to argue as to whether the materials do permit framing of charge in the case in hand." 9. The revisional Court has opined that if evidence led before the trial Court is intrinsically untrustworthy, then cognizance could not he taken, which was led before the trial Court could not he termed as intrinsically untrustworthy and hence the impugned orders are liable to be quashed and set aside. 10. The revisional Court has opined that if evidence led before the trial Court is intrinsically untrustworthy, then cognizance could not he taken, which was led before the trial Court could not he termed as intrinsically untrustworthy and hence the impugned orders are liable to be quashed and set aside. 10. Looking at the above, this petition is allowed and the impugned orders are quashed and set aside and the matter is remanded back to the trial Court for rehearing the present petitioner and after hearing the present petitioner.The matter should be decided afresh according to law.Petition allowed. *******