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2012 DIGILAW 107 (RAJ)

Ajay Kumar Parmar v. State of Rajasthan

2012-01-09

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—The present revision petition has been filed by the petitioner challenging the order dated 25.7.1998 passed by the Sessions Judge, Sirohi in Criminal Revision Petition No. 05/1998, whereby he has set aside the order dated 25.3.1998 passed by the Judicial Magistrate, Sirohi in FIR No. 43/1997 of the Police Station, Sheoganj registered for the offences under Sections 342 and 376 IPC, whereby the learned Magistrate refused to commit the accused-petitioner for trial in a Sessions Case. 2. Assailing the impugned order passed by the Revisional Court, learned counsel for the petitioner submits that in this case the FIR was filed by the prosecutrix Mst. "P" with the Superintendent of Police, Sirohi regarding the allegation of petitioner having committed forcible rape upon her. Thereafter during the course of investigation, the said prosecutrix herself made an application to the learned Magistrate, Sheoganj for recording her statement under Section 164 Cr.P.C. and thereafter the statement of the prosecutrix was recorded under Section 164 Cr.P.C. on her application. Learned counsel submits that in this statement, the prosecutrix exonerated the accused-petitioner but the investigating agency, whilst leaving out the said statement from the charge-sheet, proceeded to file the charge-sheet against the accused-petitioner, whereupon the fact of the said statement having been recorded was brought to the knowledge of the concerned Magistrate, who took the statement of the prosecutrix on record and thereafter refused to take cognizance against the accused-petitioner and discharged him from the offences under Sections 376 and 342 IPC. Learned counsel submits that the police has made a foul-play in the matter by concealing the statement of the prosecutrix recorded under Section 164 Cr.P.C. and, thus, the learned Magistrate has rightly called fro the said statement and then took the same on record. Learned counsel submits that the irrefutable conclusion, as per the statement of the prosecutrix recorded under Section 164 Cr.P.C. was that the accused-petitioner has been falsely implicated in this case and, thus, he submits that the revisional Court had committed grave error in setting aside the well-reasoned order of the learned Magistrate. He, thus, argues that the impugned order of the revisional Court be set aside and the order of the learned Magistrate may be restored. He, thus, argues that the impugned order of the revisional Court be set aside and the order of the learned Magistrate may be restored. Learned counsel for the petitioner has relied on a decision of the Hon'ble Supreme Court in State of U.P. vs. Lakshmi Brahman & Anr., AIR 1988 SC 439 in support of his arguments. 3. Per contra, learned Public Prosecutor has opposed the prayer made by the learned counsel for the petitioner. 4. I have given my thoughtful consideration to the rival arguments advanced at the bar, perused the impugned order as well as the record of the case. 5. In the opinion of this Court, the impugned order of the revisional Court, whereby he has reversed the order of the learned Magistrate is absolutely just and proper. In the Scheme of Code of Criminal Procedure, 1973, the learned Magistrate has no jurisdiction or power to refrain from committing the case to the Court of Sessions when the charge-sheet is filed. the procedure, which a Magistrate has to flow on the charge-sheet for a Sessions triable case, is laid down in Sections 207 and 209 Cr.P.C., which read as under : "Section 207.—Supply to the accused a copy of police report and other documents.—In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of the following : (i) the police report; (ii) the first information report recorded under Section 154; (iii) the statements recorded under sub-section (3) of Section 161 of all person whom the prosecution proposes to examine as is witnesses, excluding therefrom any part in regard to which a request for the exclusion has been made by the police officer under sub-section (6) of Section 173; (iv) the confessions and statements, if any, recorded under Section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173. Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused; Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy of thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court." Section 209.—Commitment of case to Court of Session when offence is triable exclusively by it.—When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall- (a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of? Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session." 6. A conjoint reading of these provisions clearly leads to an irrefutable conclusion that committal of case exclusively triable by the Court of Sessions in a case instituted on a police report is mandate of law. The decision, which the learned counsel has relied, does not apply to the present case because in that case, the issue before the Hon'ble Apex Court was not in relation to the powers of the Magistrate to commit the case but was in relation to the remand of the accused. 7. That apart, now the law regarding he permissibility of the statement under Section 164 Cr.P.C. being recorded on an application by a person other than the investigating officer is no more res integra. 7. That apart, now the law regarding he permissibility of the statement under Section 164 Cr.P.C. being recorded on an application by a person other than the investigating officer is no more res integra. The Hon'ble Apex Court, in the case of Jogendra Naik vs. State of Orissa, AIR 1999 SC 2565 has held that the Section does not empower a Magistrate to record statement of a witness on his request even though not asked by the investigating agency and further observed that "on the other hand, if door is open to such persons to get-in and if the Magistrates are put under the obligation to record their statement then too many persons sponsored by culprits might through before the portal of the Magistrate Court for the purpose of creating record in advance for the purpose of helping the culprits. 8. At the state of framing the charges, as per the provisions of Section 227 Cr.P.C., the only documents which are required to be considered, are the documents submitted by the Investigating Agency along with he charge-sheet. Any documents, which the accused wishes to rely upon, cannot be read in evidence as has been held by the Hon'ble Apex Court in State of Orissa vs. Debendra Kumar Padhi, AIR 2003 SC 1512 . 9. Resultantly, this Court is of the opinion that the learned Magistrate, whilst refusing to take cognizance on the police report for a session triable offence, over-stepped the jurisdiction and the learned Sessions Judge has rightly set aside the said order of the learned Magistrate. 10. Resultantly, the revision petition, being bereft of force, is hereby rejected. The stay petition also stands dismissed. The record of the Court below be sent back forthwith. The triable Court is directed to proceed with the trial expeditiously.