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2011 DIGILAW 356 (RAJ)

Raj Kumar v. State of Rajasthan

2011-02-17

GOPAL KRISHAN VYAS

body2011
JUDGMENT 1. - Heard learned counsel for the petitioner. In this petition filed under Section 482 Criminal Procedure Code by the petitioner complainant, order dated 30.8.2008 passed by the Additional Sessions Judge, Anoopgarh in Criminal Revision No. 36 of 2008 is under challenge whereby, the revision petition filed by petitioner was dismissed and learned revisional court confirmed the order dated 19.112007 passed by the Judicial Magistrate (First Class), Anoopgarh in Criminal Case No.1 of 2008 by which teamed Judicial Magistrate while dismissing the protest petition filed by the petitioner complainant accepted F.R. No. 39 of 2007 arising out of F.I.R. No. 118 of 2007 registered at police station Anoopgarh for alleged commission of offences under Sections 307, 326, 323, 341/34 Indian Penal Code. 2. As per facts of the case, on the basis of the complaint filed by the petitioner at police station Anoopgarh, F.I.R. No. 118 of 2007 was registered on 8.3.2007 in which allegation was levelled by the petitioner that in the morning at about 5.30 a.m on 22.1.2007, when he was going towards his house No. 26-A accused party came there and started beating him and due to being severely beaten by the accused party, his teeth were broken and other injuries were also caused upon his body by the accused party. As per allegation of the petitioner, he fell down and shouted, then, one chowkidar and other persons came there for his rescue and accused persons ran away from the place of occurrence. 3. Contention of learned counsel for the petitioner is that father of the petitioner complainant went for lodging the F.I.R. but he was threatened by the police personnel that if he lodged the complaint against those boys they will kill his son, therefore, no F.I.R. was lodged at that time, thereafter, one complaint under Section 156(3) Criminal Procedure Code was filed. Said complaint was forwarded by the Magistrate to the police for registration of the case against the accused persons. In the F.I.R. filed by the complainant after investigation the police filed F.I.R. and petitioner filed protest petition. Petitioner complainant produced four witnesses in support of the protest petition, CW-1 Raj Kumar CW-2 Aad Ram, CW-3 Gorkha Ram and CW4 Gurjant Singh. After recording their statements arguments were heard and learned Magistrate rejected the protest petition filed by the petitioner and accepted the F.I.R. vide impugned order dated 19.11.2007. 4. Petitioner complainant produced four witnesses in support of the protest petition, CW-1 Raj Kumar CW-2 Aad Ram, CW-3 Gorkha Ram and CW4 Gurjant Singh. After recording their statements arguments were heard and learned Magistrate rejected the protest petition filed by the petitioner and accepted the F.I.R. vide impugned order dated 19.11.2007. 4. Learned counsel for the petitioner vehemently argued that the whole basis of rejection of the petitioner's complaint is that in the F.I.R. certain facts were narrated by the petitioner that injuries were caused because he fell down but this fact which is observed in the impugned order is totally false. In support of his contention learned counsel for the petitioner invited attention of the Court towards F.I.R. which is registered upon the complaint filed by the petitioner. Learned counsel for the petitioner submits that no such assertion was made in the complaint by the petitioner that due to hit by the tempo he fell down, therefore, the rejection of the protest petition is baseless and totally unfounded. 5. Learned counsel for the petitioner further argued that the Magistrate decided the protest petition as if the court was deciding the criminal case finally and as if delivering final judgment whereas at the time of taking cognizance, the trial court was required to see whether prima facie case is made out or not. As per learned counsel for the petitioner in the statements recorded in support of the protest petition, it is categorically stated by all the four witnesses that petitioner received injuries due to severe beating by the accused party and he was also medically examined by the doctor and to prove this fact certain documents were placed before the Court in support of the protest petition, but, ignoring all these facts the trial court rejected the protest petition which is totally erroneous and contrary to the material on record. 6. Learned counsel for the petitioner submits that against the order passed by the Judicial Magistrate a revision petition was filed before the Addl. Sessions Judge, Anoopgarh. Learned revisional court also rejected the revision petition filed by the petitioner without considering arguments and evidence on record and, against, the revision court passed order as if the revisionl court was deciding appeal against the order passed by the judicial Magistrate. Therefore, both the impugned orders are illegal and based upon non-existing grounds. Sessions Judge, Anoopgarh. Learned revisional court also rejected the revision petition filed by the petitioner without considering arguments and evidence on record and, against, the revision court passed order as if the revisionl court was deciding appeal against the order passed by the judicial Magistrate. Therefore, both the impugned orders are illegal and based upon non-existing grounds. In this view of the matter, it is submitted that as per evidence adduced by the petitioner it is obvious that there is prima facie case made out against the accused persons, therefore, both the orders impugned may be quashed and trial Court may be directed to take cognizance against the culprits against whom the petitioner filed the F.I.R.. 7. After hearing learned counsel for the petitioner as well as learned public prosecutor, I have perused the entire record of the case. 8. After perusal of the F.I.R., it is obvious that no such assertion was made by the petitioner that he received injuries due to hit by the tempo, therefore, the learned trial Court has committed material irregularity while observing in the order that the petitioner himself has stated in the F.I.R. that he received injuries due to hit by the tempo. Further, upon perusal of the order impugned dated 19.11.2007 it emerges that statements of none of the witnesses were considered to arrive at the finding that prima facie case is made out. There is strength in the argument of learned counsel for the petitioner that court decided the matter as if it was deciding criminal case finally whereas, at the stage, it was not proper for the trial court to assess the evidence finally and as per principles of law only it was required whether prima facie case is made out or not because it is not requirement of the law that at this stage evidentiary value may be scanned, In this view of the matter, impugned order dated 19.11.2007 passed by the Judicial Magistrate, Anoopgarh is not sustainable in law. Similarly, the order passed by the revisional Court dated 30.8.2008 is erroneous and contrary to the principles of law. 9. In the result, therefore, this petition filed under Section 482 Criminal Procedure Code is allowed. Both the orders impugned dated 19.11.2007 passed by the Judicial Magistrate, Anoopgarh and dated 30.8.2008 passed by the additional Sessions Jude, Anoopgarh are hereby quashed and set aside. 9. In the result, therefore, this petition filed under Section 482 Criminal Procedure Code is allowed. Both the orders impugned dated 19.11.2007 passed by the Judicial Magistrate, Anoopgarh and dated 30.8.2008 passed by the additional Sessions Jude, Anoopgarh are hereby quashed and set aside. Matter is remitted to the Magistrate concerned for taking fresh decision on the basis of oral and documentary evidence produced by the petitioner within two months time.Petition allowed. *******