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2012 DIGILAW 997 (RAJ)

Sheoji Ram v. State of Rajasthan

2012-04-19

NISHA GUPTA

body2012
JUDGMENT 1. - The revision petition has been filed against the judgment dated 10.3.2003 passed by Judicial Magistrate, Bonli whereby the charges have been framed against the present petitioner for the offences under Sections 167 and 466 I.P.C. 2. The short facts of the case are that a complaint has been filed against the present petitioner under Section 166 Criminal Procedure Code on 27.10.1991. After investigation, the police has filed a negative report before the concerned Magistrate. Vide order dated 15.2.1996 cognizance has been taken against the present petitioner for the offence under Sections 167 and 446 I.P.C. 3. After registration of the case, the matter came up for framing of charges. The learned Magistrate has heard the learned Public Prosecutor and the counsel for the complainant and recorded a finding that material is insufficient to charge the petitioner and instead of discharging the petitioner, novel proceedings have been started and the learned Court below has ordered for recording of pre-charge evidence under Section 244 (1), Criminal Procedure Code 4. The contention of the present petitioner is that Section 244(1), Criminal Procedure Code is applicable only to those warrant trials where case has been instituted otherwise on the police report. Here in the present case, the case has been instituted on police report and cognizance has been taken on police report. Hence charge could not be framed against the present petitioner on the strength of the evidence which has been recorded invoking provisions of Section 244(1). 5. The contention of the respondent is that the present petitioner has not assailed the order on the strength of which pre-charge evidence has been recorded. 6. The contention of the present petitioner is that he is aggrieved by the order of framing of the charge, this Court will examine the correctness and validity of the proceedings and when the order is per se illegal, the present petitioner could not be penalised for the error of the trial Court. 7. It is not in dispute that the cognizance has been taken against the present petitioner on police report. Hence the order of the trial Court that pre-charge evidence should be recorded under Section 244(1) is per se illegal and the order of framing charge could not be rest upon the evidence which has been recorded under Section 244(1). 8. 7. It is not in dispute that the cognizance has been taken against the present petitioner on police report. Hence the order of the trial Court that pre-charge evidence should be recorded under Section 244(1) is per se illegal and the order of framing charge could not be rest upon the evidence which has been recorded under Section 244(1). 8. Hence, this revision petition is allowed and the order of framing charge dated 10.3.2003 is hereby quashed and the matter be remitted back to the trial Court to re-hear the matter after affording opportunity of hearing to both the parties and it is made clear that the evidence which has been recorded in pursuance of the order dated 21.11.1997 will not be looked into while deciding the question of framing charge/ discharge against the present petitioner. The parties are directed to appear before the trial Court on 8.5.2012.Revision Petition Allowed. *******