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2013 DIGILAW 1651 (RAJ)

Kharta Ram v. State of Rajasthan

2013-09-18

KANWALJIT SINGH AHLUWALIA

body2013
JUDGMENT 1. - Present petition has been filed by Kharta Ram, praying for quashing of F.I.R. No. 461/2008, registered at Police Station, Udaimandir, Jodhpur, for offences under Sections 420 and 406 I.P.C. 2. In the present petition, Mr. Mathur, the learned counsel appearing on behalf of the petitioner, has vehemently contended that the entire dues of the bank have been paid, and the bank has decided not to prosecute the petitioner for the offence alleged, as compromise has been arrived at between the petitioner and the bank. 3. Contention raised by the learned counsel appearing on behalf of the petitioner has been noticed by the co-ordinate Bench in its order dated 3.12.2012. 4. The order dated 3.12.2012 passed by the co-ordinate Bench of this Court reads as under: "Shri H.K. Meena, Chief Manager, Oriental Bank of Commerce, Branch Office, Sojati Gate is present in person. The F.I.R. in this case has been filed by the aforesaid bank. Learned counsel for the petitioner submits that all the dues of the Bank have been cleared and the no dues certificate has already been issued by the Bank in favour of the petitioner. He submits that in this view of the matter, the F.I.R. impugned be quashed. The Chief Manager present in the Court states that the dues of the Bank have been cleared and that he will take steps for filing compromise application be the next date. List the matter on 17.12.2012." 5. A bare perusal of the order dated 3.12.2012 passed by the co-ordinate Bench of this Court, explicitly makes it clear that the bank has decided not to prosecute the petitioner, and to this effect the statement of Chief Manager of the Oriental Bank of Commerce, Branch Office, Sojati Gate, Jodhpur has been recorded. 6. Offences under Sections 406 and 420 I.P.C. are compoundable in nature. 7. Mr. Mathur, the learned counsel for the petitioner has submitted that even though offences are compoundable, the petitioner is not able to file an application under Section 320 Cr.P.C. for composition of the offences, as the Investigating Officer has not concluded the investigation, and has not submitted the report of investigation, along with his opinion in the Court of competent jurisdiction. 8. Mr. A.R. Nikub, the learned Public Prosecutor for the State, has submitted that the petitioner has not appeared before the Investigating Officer. 9. 8. Mr. A.R. Nikub, the learned Public Prosecutor for the State, has submitted that the petitioner has not appeared before the Investigating Officer. 9. Offence under Section 406 I.P.C. is punishable upto maximum sentence of three-years, whereas maximum sentence prescribed for offence under Section 420 I.P.C. is seven years. 10. Section 41 I.P.C., which was amended by Act No. 5/2009 with effect from 1.11.2010, specifically states that the Police Officer shall record his reasoning in writing before making arrest of the accused. 11. Section 41-A I.P.C. further states that notice of appearance to the accused is to be issued by the Police Officer, and in case accused, in pursuance of notice, so issued appear before the Investigating Officer, the Police Officer before effecting arrest shall record his reasoning in writing. 12. Considering the fact that the offences are compoundable in nature, and the compromise has already been effected between the complainant and the accused-petitioner this Court is of the view that the Investigating Officer ought to have given a notice to the petitioner under Section 41-A I.P.C. for appearance before him. 13. Legislature in its wisdom to safeguard the liberty of the citizen for offences, for which maximum punishment prescribed is seven years has made it mandatory that the Investigating Officer before affecting the arrest shall record his reasonings in writing. 14. Since in the present case, compromise has already been arrived at between the parties, qua the compoundable offences, this Court is of the view that the petitioner should appear before the Investigating Officer and present deed of composition. The Investigating Officer shall record the statement of the Chief Manager of the Bank of verify whether compromise has been arrived at between the parties or not. 15. After recording statement of the accused and the complainant i.e. officer of the Bank, the Investigating Officer shall formulate his opinion whether the petitioner is to be prosecuted or not. The Investigating Officer shall submit report of investigation, along with his opinion in the Court of competent jurisdiction within one month from receipt of certified copy of the order. 16. In case, the Investigating Officer come to a conclusion that the accused are to be arrested, he shall record his reasons in writing and serve a copy of such reasonings to the petitioner. 17. 16. In case, the Investigating Officer come to a conclusion that the accused are to be arrested, he shall record his reasons in writing and serve a copy of such reasonings to the petitioner. 17. However, it is ordered that after reasons recorded in writing for affecting arrest are furnished to the petitioner, his arrest shall be kept in abeyance for seven days to enable the petitioner to approach the Court of competent jurisdiction for appropriate relief. 18. In view of above, the present petition is disposed of. 19. No order is required to be passed on the Application No. 1766/2012 filed by the petitioner, for seeking appropriate directions because of decision of the present petition.The stay application also stands disposed of.Petition disposed of. *******