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2014 DIGILAW 1230 (RAJ)

Ummed Singh Katewa v. State of Rajasthan

2014-05-27

KANWALJIT SINGH AHLUWALIA

body2014
JUDGMENT 1. - Heard. 2. The present petition has been filed by the petitioners under Section 482 Cr.P.C. praying that the order dated 16.9.2013 passed by Addl. Chief Judicial Magistrate No. 20, Jaipur Metropolitan taking cognizance against the petitioners and summoning them to stand for the trial along with the order dated 28.2.2014 passed by the Revisional Court below, be set aside. 3. Petitioners are the parents-in-law of complainant Smt. Rashmi. The Investigating Agency after conducting investigation had submitted a negative final report absolving the petitioners of the offence alleged. Aggrieved of the same, the complainant non-petitioner No. 2 Smt. Rashmi had filed a protest petition. However, the Trial Court had taken cognizance against the petitioners under Section 190 Cr.P.C. 4. Mr. Kapil Gupta, Counsel appearing for the petitioners has submitted that the finding given by the Investigating Agency in the negative final report has not been taken into consideration by the Court of Magistrate while taking cognizance of the offence and summoning the accused petitioners to stand for the trial. 5. Counsel for the petitioners further submitted that upon the protest petition, no statement under Section 202 Cr.P.C. was recorded by the Magistrate. 6. The argument advanced by the Counsel is misconceived. 7. Once a final report in negative form is submitted, there are four options with the Magistrate, (i) He may after issuing notice to the complainant accept the report and drop the proceeding; or (ii) He may disagree with the report and I may order further investigation by the police; or (iii) Take the view that there is sufficient ground to proceed further and take cognizance of the offence and issue process; or (iv) May record statement of the complainant and his/her witnesses following the procedure provided under Section 202 Cr.P.C. 8. Thus, position is, therefore, now well-settled that upon receipt of a police report under Section 173 Cr.P.C. a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order issuance of process against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order issuance of process against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the , offence, if he is of opinion that offence is made out to exercise powers under Section 190(1)(b) and thereafter issue of process against the accused. 9. Counsel for the petitioners has then submitted that the order of the Magistrate is a cryptic order and he has not dealt with the grounds on which the final report in negative form was submitted. 10. The Trial Court while passing the order of cognizance has stated that from the statement of the complainant in the F.I.R. and the statements made by other witnesses under Section 161 Cr.P.C. there are specific allegations against the petitioners. At the same time, a perusal of the charge sheet reveal that the Investigating Agency has given no reason as to why the petitioners are not to be tried for the offence alleged. Therefore, if the opinion of the Investigating Agency and the order of the Magistrate along with the statements of the witnesses are taken into consideration together there is no denial of the fact that the complainant and her witnesses have levelled specific allegations against the petitioners prima facie satisfying the ingredients of offences under Sections 406 and 498-A l.P.C. 11. However, this Court cannot become oblivious of the fact that in the matrimonial dispute there is tendency to involve all family members of the husband by the aggrieved wife. To this effect, observations made by the Hon'ble Apex Court in Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 , can be taken note of. 12. In the facts and circumstances of the case, to balance the equities and considering the fact that the Investigating Agency has submitted a final report in negative form against the petitioners absolving them of the offence, this Court is of the view that if a direction is issued that in case the petitioners appear before the Trial Court, their personal appearance before the Trial Court is exempted, will serve the interest of justice. 13. 13. Consequently, without causing interference in the impugned order taking cognizance and order passed by the Revisional Court-below upholding the order of Magistrate, the personal appearance of the petitioners before the Trial Court is exempted subject to following conditions:- (1) that the petitioners shall furnish undertaking that they shall appear before the Court at the time of framing of charges, recording of statements under Section 313 Cr.P.C. and at the time of delivery of the judgment; (2) that petitioners shall also furnish an undertaking that evidence recorded in their absence but in the presence of their Counsel shall be binding upon them; and (3) that petitioners shall also furnish an undertaking to appear before the Trial Court as and when the Trial Court direct them to do so. Upon disposal of the main petition, the stay application filed therewith does not survive and same also stands disposed of.Petition disposed of. *******