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2011 DIGILAW 709 (RAJ)

Mohan Lal v. The State of Rajasthan

2011-04-04

SANGEET LODHA

body2011
JUDGMENT 1. - These criminal miscellaneous petitions are directed against order dated 5.1.11 of Additional Sessions Judge (FT), Balotra headquarter Barmer, whereby revision petitions preferred by the petitioners assailing the order dated 15.4.10 passed by the Judicial Magistrate, Barmer taking cognizance against the petitioner-Mohanlal for offences u/ss. 376, 342 IPC and against the petitioner-Palu Devi for offences u/ss 376/109, 342 IPC, stand dismissed. 2. The relevant facts in nutshell are that the complainant-Bagta Ram submitted a written report before Superintendent of Police, Barmer with the allegations that his grant daughter, student of class X studying in Government Secondary School, Ranasar was restrained by Palu Devi, a para teacher, in the class room after the school hours and thereafter, the petitioner-Mohan Lal, a teacher came in the room, Palu Devi bolted the door from the outside and Mohan Lal tried to commit rape on her. 3. The written report submitted as aforesaid, was referred by the Superintendent of Police to the SHO, Police Station, Dhorimana with the directions to register the case and take necessary action. 4. The SHO, PS., Dhorimana accordingly registered. an FIR being No. 127/08, on 5.9.08, for offences u/ss. 354, 376/511 IPC against the petitioners herein and the investigation commenced. In the meantime, a complaint was filed by the prosecutrix before the Judicial Magistrate, Barmer against the petitioners alleging commission of offences u/ss 376, 342, 120-B IPC. The complaint was referred by the learned Magistrate u/s 156 (3) Cr.PC. to the Police Station, Dhorimana for investigation. 5. During investigation, the statements of prosecutrix were recorded by the police u/s 161 Cr.P.C. Besides, the prosecutrix also got recorded her statements u/s 164 Cr.PC. before the Magistrate. The police recorded the statements of eye witnesses Laduram and Ashuram, the students and the teachers of the school etc. After conclusion of the investigation, the police filed negative Final Report concluding that the allegations levelled are false. 6. The prosecutrix filed a protest petition before the learned Magistrate, who examined the prosecutrix u/s 200 Cr.P.C., the complainant-Bagta Ram and other witnesses namely, Ashuram, Laduram and Babulal u/s 202 Cr.PC. After due examination of the Final Report submitted by the police, the statements of the prosecutrix recorded u/s 200 Cr.PC. 6. The prosecutrix filed a protest petition before the learned Magistrate, who examined the prosecutrix u/s 200 Cr.P.C., the complainant-Bagta Ram and other witnesses namely, Ashuram, Laduram and Babulal u/s 202 Cr.PC. After due examination of the Final Report submitted by the police, the statements of the prosecutrix recorded u/s 200 Cr.PC. so also the statements of other witnesses recorded u/s 202 Cr.PC, the learned Magistrate arrived at the finding that the sufficient grounds exist for taking cognizance for the offences against the petitioners and accordingly, vide order dated 15.4.10 took cognizance against the petitioner-Mohanlal for offences u/ss. 376, 342 IPC and against the petitioner Palu Devi for offences u/ss. 376/109 & 342 IPC and summoned them by issuing arrest warrant. 7. Aggrieved thereby, the petitioners preferred separate revision petitions before the Additional Sessions Judge, Barmer which were later transferred for disposal to Additional Sessions Judge (FT.), Balotra. 8. After consideration of the rival submissions, the revision petitions have been dismissed by the Additional Sessions Judge (FT), Balotra by the order impugned holding that the order passed by the learned Magistrate taking cognizance against the petitioners does not suffer from any legal error warranting interference by the court in revisional jurisdiction. Hence, these petitions. 9. I have heard the learned counsels for the petitioners, the learned Public Prosecutor and the learned counsel for the complainant and perused the challan papers, the statements of the prosecutrix and other witnesses recorded u/s 200/202 Cr.RC. and other material on record. 10. Learned counsels -for the petitioners contended that the orders impugned passed by the court below are contrary to facts and law and therefore, deserves to be quashed and set aside. Learned counsels urged that after due investigation, the investigating agency had filed the negative Final Report mentioning in detail the reasons for the conclusion arrived at in terms that no offence as alleged is made out against the petitioners, however, while passing the order taking cognizance, the learned Magistrate has not recorded any reasons as to why he is not satisfied with the reasons assigned by the investigating agency while arriving at the conclusion that the allegations levelled against the petitioners are false. Learned counsels submitted that the learned Magistrate has altogether ignored all relevant factors indicating towards innocence of the accused petitioners. Learned counsels submitted that the learned Magistrate has altogether ignored all relevant factors indicating towards innocence of the accused petitioners. Learned counsels submitted that the FIR was registered after a delay of 12 days and in the written report filed by the complainant-Bagta Ram only allegation was that of attempt to commit rape, however, the same has been subsequently improved into the offence of rape. Learned counsels submitted that the prosecutrix has come with a case that she was being exploited since long but no proceedings were initiated in this regard earlier, which creates a doubt on the story of the prosecution. Learned counsels submitted that during the investigation,the police recorded the statements of number of independent witnesses including Head Master of the school and found that no offence as alleged was committed by the petitioners. Learned counsels submitted that the incident is alleged to be of 20.8.08 and, thereafter, till 28.8.08, the prosecutrix co, itinued to go to school regularly but did not disclose the said incident to anybody which also creates a serious doubt about the prosecution case and it appears that the complaint was filed for oblique motive. Learned counsel submitted that in view of the major contradictions and inconsistency existing in the statements of the prosecutrix recorded u/s 161, 164 and 200 Cr.PC., the learned Magistrate was not justified in taking cognizance against the petitioners for the offences as alleged. Learned counsel appearing for the petitioner-Palu Devi further submitted that there is no independent evidence on record that the accused-Palu Devi facilitated the commission of rape by the accused- Mohanlal. Accordingly, learned counsels submitted that the orders impugned passed by the court below which are based on surmises and conjectures and not on sound principles of law, deserves to be set aside. Lastly, the learned counsels submitted that on the facts and in the circumstances of the case, while taking cognizance against the petitioners for offences as alleged on the protest petition filed learned Magistrate was not justified in summoning of the accused by straight away issuing the arrest warrant and, therefore, the arrest warrants issued deserves to be converted into bailable warrants. In support of their contention, learned counsels have relied upon the decisions of the Hon'ble Supreme Court in the matter of Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors., 2008(1) WLC (SC) Cri. In support of their contention, learned counsels have relied upon the decisions of the Hon'ble Supreme Court in the matter of Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors., 2008(1) WLC (SC) Cri. 34 : (2008) 1 SCC (Cri.) 259 and a decision of this Court in the matter of Bhanwarlal v. State of Rajasthan & Anr., S.B. Criminal Misc. Petition No. 253 of 2006, decided on 6.4.2007 . 11. A perusal of the order passed by the learned Magistrate taking congnizance reveals that while examining the Final Report submitted, the statement of the prosecutrix recorded u/s 164 Cr.P.C. & 200 Cr.P.C. and the statements of other witnesses recorded u/s 202 Cr.PC., a categorical finding has been arrived at that the police has proceeded with the investigation with an intention to save the accused persons. The court observed that regarding the alleged incident, a written report was submitted by the complainant-Bagta Ram before the Superintendent of Police, Barmer on 1.9.08 and the said report was duly received by the Police Station concerned on 3.9.08, however, the FIR was not registered till 5.9.08 and, therefore, the prosecutrix filed a complaint before the Magistrate on 4.9.08 alleging commission of offence u/s 376, 342, 120-B IPC which was referred for investigation to the PS., Dhorimana u/s 156(3) Cr.P.C. and thereafter, on 5.9.08, the FIR was registered for offences u/ss. 376/511 & 342 IPC on the basis of the written report submitted by the complainant-Bagta Ram before the Superintendent of Police, Barmer. It has come on record that instead of recording the statement of the prosecutrix and the eye witnesses first, the police proceeded to record the statements of the students and others u/s 161 Cr.PC. on 6.9.08 and thereafter, the statements of the prosecutrix and the complainant and eye witnesses were recorded on 7.9.08. That apart, the court found that the incident was of 20.8.08 yet the police collected the evidence regarding the presence of the accused elsewhere on 23.8.08 and on that basis, the negative Final Report has been filed. The learned Magistrate found that while filing the Final Report, the police has ignored the statement of the prosecutrix recorded u/s 164 Cr.PC. altogether. 12. The learned Magistrate found that while filing the Final Report, the police has ignored the statement of the prosecutrix recorded u/s 164 Cr.PC. altogether. 12. Needless to say that at the stage of taking cognizance, the court is not required to appreciate the evidence on record so as to arrive at the conclusion as to whether the evidence on record will finally lead to conviction or not. Having considered the material on record, this court is of the considered opinion that there exists sufficient ground for taking cognizance and issuing process against the accused-petitioners for the offences as alleged and the order impugned passed by the learned Magistrate taking cognizance, affirmed by the revisional court does not suffer from any jurisdictional error or any other infirmity or illegality so as to warrant interference by this court in exercise of its inherent jurisdiction under Section 482 CrP.C. 13. Coming to the prayer of the petitioners for converting the arrest warrants into bailable warrants, it is to be noticed that in Inder Mohan Goswami's case (supra), relied upon by the learned counsel, the Hon'ble Supreme Court has not laid down the law for universal application that in no case where the cognizance is taken by the Magistrate on protest petition, the accused can be summoned by issuing arrest warrant. In the said case, the Apex Court after examining all the relevant aspects of the matter, observed : "56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided." 14. In Bhanwarlal's case also, this court directed to issue bailable warrant instead of arrest warrant for securing the presence of the accused-petitioner therein taking into consideration the facts and circumstances of the said case. 15. In Bhanwarlal's case also, this court directed to issue bailable warrant instead of arrest warrant for securing the presence of the accused-petitioner therein taking into consideration the facts and circumstances of the said case. 15. It is to be noticed that in the instant case, the allegation against the accused persons are of committing rape and abetting the commission of rape with their minor student of 17 years and thus, taking into consideration, the nature of accusation, the evidence in support thereof and totality of the facts and circumstances of the case, this court is not inclined to interfere with the order impugned passed by the learned Magistrate summoning the accused by arrest warrant. 16. For the reasons aforementioned, these criminal miscellaneous petitions lack merits, the same are hereby dismissed.Petition Dismissed. *******