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2013 DIGILAW 2302 (RAJ)

Jagraj Singh v. State of Rajasthan

2013-12-17

SANDEEP MEHTA

body2013
JUDGMENT 1. - Heard learned Counsel for the petitioner, the learned Public Prosecutor and the learned Counsel for the respondents. Perused the order impugned. 2. Briefly stated the facts of the case are that an F.I.R. was registered on the basis of a Parcha Bayan of the petitioner recorded while he was admitted at the Government Hospital, Raisinghnagar on 13.5.2003. The petitioner received a number of injuries in the incident. The police registered an F.I.R. No. 255/2003 at P.S. Raisinghnagar for the offences under Sections 341, 323, 147, 148, 149 and 307 of the I.P.C. After investigation a Final Report was given in the case. The petitioner filed a protest petition and examined himself under Section 200 Cr.P.C. The learned Magistrate rejected the prayer of the petitioner to summon the accused by order dated 23.1.2006. The said order was unsuccessfully challenged by the petitioner in a revision preferred before the learned Addl. Sessions Judge, Raisinghnagar which came to be rejected vide order dated 1.9.2007. Hence, this miscellaneous petition. 3. Learned Counsel for the petitioner submits that the learned Magistrate has proceeded on absolutely wrong premises while rejecting the prayer of the petitioner for summoning the respondents as accused in this case. He contends that the learned Magistrate held that the petitioner did not examine the witnesses under Section 202 of the Cr.P.C., and therefore, the proceedings could not be initiated against the accused. He relies on the decision of the Hon'ble Supreme Court in the case of Shivjee Singh v. Nagendra Tiwary & Ors., reported in 2010 AIR SCW 4064 in support of his contention. He submits that the learned Magistrate made an extensive analysis and evaluation/sifting of the evidence as if he was considering the case at the final stage and has rejected the petitioner's prayer for proceedings against the accused. He contends that the orders impugned are absolutely unjustified and amounts to a gross abuse of the process of the Court. He thus prays that the miscellaneous petition be accepted and the learned Magistrate be directed to proceed against the accused. 4. Per contra, the learned Counsel for the respondent vehemently opposed the submissions advanced by the learned Counsel for the petitioner. He submits that the police conducted thorough investigation of the case and came to the conclusion that the petitioner's case as set up in his Parcha Bayan was totally false and concocted. 4. Per contra, the learned Counsel for the respondent vehemently opposed the submissions advanced by the learned Counsel for the petitioner. He submits that the police conducted thorough investigation of the case and came to the conclusion that the petitioner's case as set up in his Parcha Bayan was totally false and concocted. He urges that the petitioner himself was responsible for causing larger number of firearm injuries to the respondent party, and therefore, no interference is called for in the order passed by the learned Magistrate. 5. Heard and considered the arguments advanced at the bar. Perused the orders impugned. The principal observation made by the learned Magistrate whilst rejecting the petitioner's prayer was that the complaint suffers from the illegality of non examination of all the witnesses under Section 202(2) of the Cr.P.C. is apparently illegal in view of the decision rendered by the Hon'ble Supreme Court in the case of Shivjee Singh v. Nagendra Tiwary (supra). The word "shall" used in the said provision has been held to be directory. That apart it is the specific case of the petitioner that he was; caused 11 injuries by the accused whilst they were wielding different weapons. The Investigating Agency has proceeded as if it was finally deciding the case and considering the defence of the accused gave a Final Report. The learned Magistrate too has rejected the prayer of the case by adopting the same procedure. The scheme of examination of criminal case at the stage of summoning of the accused does not require such an elaborate sifting and analysing of evidence. Thus, this Court of the opinion that the order passed by the learned Magistrate refusing to take cognizance as well as the Revisional Court's order dated 1.9.2007 are prima facie illegal and amount to a gross abuse of the process of the Court. 6. Accordingly, the miscellaneous petition deserves to be accepted and is hereby allowed. The orders impugned are quashed. The matter is remanded back to the Learned Magistrate who shall re-hear the complainant petitioner and thereafter shall pass a fresh order without being influenced by any of the observations made hereinabove. Record be sent back forthwith.Petition allowed. *******