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2012 DIGILAW 2296 (RAJ)

Kamal Kumar v. State of Rajasthan

2012-12-12

SANDEEP MEHTA

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. The instant misc. petition has been preferred by the petitioner challenging the order dated 15.12.2011 passed by learned Additional Sessions Judge, Churu in Criminal Revision No.10/2011 (7/2011) whereby he has affirmed the order dated 19.8.2009 passed by the learned Chief Judicial Magistrate, Churu taking cognizance against the petitioner for the offences under Sections 341, 323 and 504 I.P.C. 3. Succinctly stated the facts of the case are that the respondent no.2/complainant submitted an F.I.R. at the P.S. Kotwali, Churu on 20.3.2009 alleging inter alia that on 11.3.2009 when he was going on his motorcycle from near Balaji Temple, at that time, the petitioner accosted him, pushed him down from the motor cycle and started beating him indiscriminately. He further alleged that the petitioner gave a blow by a sharp weapon on his face. The complainant further alleged that on hearing his cries, a number of persons including Bhanu Soni came there and saved him. He further alleged that he bleed profusely and became unconscious and as such, he did not knew as to who had taken him to the hospital and ultimately, after recovering, he came to the Police Station for reporting the matter. On the basis of the aforesaid allegations, FIR No. 101/2009 was registered under Sections 341 and 323 IPC and investigation commenced. The police after investigation came to the conclusion that ex-facie the FIR filed by the complainant was patently false and concocted. The complainant did not provide any material whatsoever to show that he had been admitted in the hospital as claimed by him in the FIR. The police found that on the day next to Holi, the complainant quarrelled with the accused after consuming liquor and thereafter filed the belated report for oblique motives. The highest case which was found to be proved was for the offence under Section 504 IPC, which is a non-cognizable offence. The complainant, however, was not satisfied by the FR filed by the police and submitted a protest petition and examined himself in support of the protest petition. However, he did not produce any record regarding his alleged hospitalisation during the period of nine days from the date of occurrence till the date of filing the FIR. The complainant, however, was not satisfied by the FR filed by the police and submitted a protest petition and examined himself in support of the protest petition. However, he did not produce any record regarding his alleged hospitalisation during the period of nine days from the date of occurrence till the date of filing the FIR. The injury report which has been prepared during the course of investigation on 25.3.2009 also reveals that the complainant was diagnosed with a complaint of pain and nothing beyond that. No corresponding injury by a sharp weapon as alleged by the complainant on the face was found existing on medical examination. The independent witnesses who have been examined during the course of investigation stated that the petitioner runs a tea stall and on 11.3.2009, the complainant came to the shop of the accused and started throwing away his utensils on which there was a verbal exchange between the petitioner and the complainant. However, the learned Magistrate did not accept the FR filed by the police and vide order dated 19.8.2009, proceeded to take cognizance against the petitioner holding that the allegations of the complainant were corroborated by the medical evidence as well. The petitioner challenged the order dated 19.8.2009 taking cognizance against him by filing a revision. The revisional court vide order dated 15.12.2011 affirmed the order taking cognizance. Hence, the petitioner has filed the instant misc. petition seeking quashing the aforesaid orders and all proceedings going on against him in the trial court. 4. Learned counsel for the petitioner contended that exfacie in this case, there is no material by which it can be inferred that any act of assault or wrongful restraint took place as alleged by the complainant. He contended that the incident is said to have taken place on 11.3.2009 and the FIR has been filed after a great delay of 9 days. He contended that no explanation is forthcoming from the complainant for the unusual delay in filing the FIR. He further contended that had any incident as alleged by the complainant taken place, then there was no rhyme or reason as to why the complainant did not report the matter immediately to the police. He contended that no explanation is forthcoming from the complainant for the unusual delay in filing the FIR. He further contended that had any incident as alleged by the complainant taken place, then there was no rhyme or reason as to why the complainant did not report the matter immediately to the police. He further contended that the allegation of the complainant that he was admitted in the hospital and, therefore, could not report the matter to the police, is patently false because no record of the alleged hospitalisation has been made available to the I.O. during the course of investigation. He further contended that the allegations of the complainant are not corroborated by any independent witness and, therefore, the order taking cognizance deserves to be quashed. 5. Per contra, learned Public Prosecutor and learned counsel for the respondent no.2 have vehemently opposed the submissions advanced by the petitioner and contended that at the stage of taking cognizance, only the existence of a prima-facie case is to be seen and nothing more. They also contended that the order taking cognizance has already been affirmed in revision and, therefore, the instant misc. petition is nothing but a second revision by the same party and, therefore, the same deserves to be rejected. 6. Upon a consideration of the arguments advanced at the bar and after going through the orders impugned and the material available on the record, the most material circumstance which strikes the mind in this case is that the FIR involving a simple case of alleged beating and wrongful restraint has been filed after nearly 9 days of the incident. The complainant claims that he was admitted in the hospital and, therefore, could not report the matter to the police but the said claim of the complainant is not supported by any material on the record. No record of the hospital where the complainant was allegedly lodged during the period of 9 days from 11.3.2009 to 20.3.2009 has been provided to the I.O. No such record has been produced in support of the protest petition also. The complainant has further claimed that he was caused a sharp weapon injury on the face by the accused but the said allegation is not supported by the medico legal report as well. The complainant has further claimed that he was caused a sharp weapon injury on the face by the accused but the said allegation is not supported by the medico legal report as well. The finding of the learned Magistrate in this regard is totally contrary to the record because the medical report of the complainant which is available on the record shows that he was simply complaining of pain and nothing beyond that. No external injury was revealed on his medical examination. The offences for which the cognizance has been taken are minor offences and the police after thorough investigation has given a well reasoned negative FR in the matter and after considering the finding giving by the investigating agency, this Court is also of the opinion that prima-facie the case as set up by the complainant in his belated FIR and the statement recorded under Section 200 Cr.P.C., is patently concocted and is not worthy of acceptance. Substantial delay in filing of the FIR is an important factor which supports this finding. In view of the aforesaid facts, this Court has no hesitation in holding that the order taking cognizance against the petitioner for the offences under Sections 341, 323 and 504 IPC cannot be sustained and is liable to be quashed. 7. Consequently, the instant misc. petition is allowed and the order dated 19.8.2009 passed by the learned Chief Judicial Magistrate, Churu, in FR No.61/2009 arising out of FIR No.101/2009, taking cognizance against the petitioner for the offences under Sections 341, 323 and 504 IPC as well as the revisional court's order dated 15.12.2011 affirming the said order and all subsequent proceedings pursuant thereto are hereby quashed.Stay petition also stands disposed of. *******