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2013 DIGILAW 112 (RAJ)

Santu v. State of Rajasthan

2013-01-15

SANDEEP MEHTA

body2013
Hon'ble MEHTA, J.—The instant misc. petition is directed against the order dated 6.10.2005 passed by learned Judicial Magistrate 1st Class, Nokha, whereby the learned Judicial Magistrate has, instead of proceeding against the respondents for the offence under Section 376 IPC and without providing any opportunity of hearing to the petitioner complainant on the partial chargesheet filed by the Police has released the respondents No.2 and 3 on probation for the offences under Sections 447, 341 and 323/34 IPC. 2. Succinctly stated the facts of the case are that the petitioner complainant filed an FIR at Police Station Panchu on 29.10.2004 with the allegations that the respondents No.2 and 3 herein, forcibly entered into her Dhani and assaulted her as well as her brother-in-law and that respondent Daul Nath committed rape upon her. 3. During the course of the investigation, the petitioner in her statements recorded under Section 161 Cr.P.C. as well Section 164 Cr.P.C. repeated the allegations levelled by her in the FIR and alleged that she had been subjected to forcible rape by Daul Nath. The Police, for reasons best known to itself did not file a charge-sheet for the offence under Section 376 IPC and instead filed a report under Section 173 Cr.P.C. for the offences under Sections 447, 341 and 323/34 IPC only. On the very first day on which the result of investigation was filed, the accused appeared in the Court and pleaded guilty on which the Magistrate without applying its mind to the report submitted by the Police in relation to the non-commission of the offence under Section 376 IPC proceeded to convict the accused for the offences under Sections 447, 341 and 323/34 IPC on the basis of their pleading guilty and released them on probation. Now the complainant has approached this Court by way of the instant misc. petition seeking a direction that the order dated 6.1.2005 passed by the learned Judicial Magistrate, whereby the learned Judicial Magistrate has released the accused on probation for the minor offences without providing any opportunity of hearing to the petitioner in relation to the major offence under Section 376 IPC. 4. Notice of the petition was issued to the respondents No.2 and 3 but nobody has put in appearance on their behalf. 5. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the record. 6. 4. Notice of the petition was issued to the respondents No.2 and 3 but nobody has put in appearance on their behalf. 5. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the record. 6. From the perusal of the record, it is apparent that the petitioner has distinctly and clearly stated that she was subjected to rape by the accused Daul Nath after trespassing into her house. The accused Som Nath is said to be standing outside the house at that time and he too assaulted the prosecutrix. As the Police did not file a charge-sheet for the major offence of Section 376 IPC and exonerated the respondents from the said offence, by virtue of the decision of the Hon'ble Apex Court in the case of Bhagwant Singh vs. State of Commissioner of Police & Anr. reported in AIR 1985 SC 1285 , the complainant was entitled to be heard before the report of the Investigating Agency regarding non-commission of the major offence could be accepted. That apart, it was expected of the learned Magistrate to have applied his mind to the facts of the case rather than mechanically accepting the negative Final Report of the Police regarding the non-commission of the offence under Section 376 IPC. The Police has given no justifiable reasons in concluding that the offence of rape was not committed upon the prosecutrix. 7. Accordingly, the misc. petition is allowed and the order dated 6.1.2005 passed by the learned Judicial Magistrate 1st Class, Nokha District Bikaner in Cr. Case No.11/2005 is hereby quashed. The learned Judicial Magistrate shall now provide an opportunity of protest to the petitioner and then shall pass a fresh order in the matter in accordance with law. The petitioner should appear before the learned Judicial Magistrate on or before 28.2.2013, whereafter the learned Magistrate shall proceed with the matter as observed above. 8. Record of the court below be sent back forthwith.