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2014 DIGILAW 836 (JHR)

Lalvir Ram v. State of Jharkhand

2014-08-06

H.C.MISHRA

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ORDER Heard the learned counsel for the petitioners and the learned counsel for the State as also learned counsel for the complainant Opp. Party No.2. 2. The petitioners are aggrieved by the order dated 20.8.2001 passed by the learned Chief Judicial Magistrate, Daltonganj, in Complaint Case No.385 of 2000, whereby upon an enquiry by the learned Court below, the cognizance has been taken against the petitioners for the offence under Sections 452, 323, 354 & 379 of the Indian Penal Code. 3. The petitioners have been made accused in Complaint Case No. 385 of 2000 filed in the Court of the Chief Judicial Magistrate, Palamau, by the complainant Opp. Party No.2, in which, there is allegation against the petitioners that on 30.6.2000, they came to the house of the complainant and assaulted the complainant, his wife and his son. They also outraged the modesty of the wife of the complainant and also took away silver and gold ornaments of the wife of the complainant. With these allegations, the complaint petition was filed on 7.7.2000. 4. The statement of the complainant was recorded on solemn affirmation and two witnesses were also examined at the enquiry stage. Subsequently, it appears that the police report was called for by the Court below, in view of the fact that the copy of the F.I.R in Sadar P.S Case No. 226 of 2000 corresponding to G.R No. 772 of 2000 was produced in the Court, which was filed against the complainant by one of the accused persons, with respect to the occurrence of the same date, i.e., 30.6.2000. The police report was submitted, which was considered by the Court below in order dated 7.12.2000, which revealed that the complaint case was concocted one, filed for the purpose of taking revenge for the said police case, i.e., Sadar PS Case No. 226 of 2000 filed against the complainant by one of the accused of this case. However, it appears that subsequently by the impugned order dated 20.8.2001 passed by the learned Chief Judicial Magistrate, Palamau, the cognizance has been taken against the petitioners on the basis of the enquiry made in the case, for the offence under Sections 452, 323, 354, & 379 of the Indian Penal Code. 5. However, it appears that subsequently by the impugned order dated 20.8.2001 passed by the learned Chief Judicial Magistrate, Palamau, the cognizance has been taken against the petitioners on the basis of the enquiry made in the case, for the offence under Sections 452, 323, 354, & 379 of the Indian Penal Code. 5. Learned counsel for the petitioners has submitted that the impugned order passed by the Court below is absolutely illegal, inasmuch as, in the impugned order, there is no mention about the police report from which showed that the petitioners have been falsely implicated in the case, though the same has been mentioned in the earlier order dated 7.12.2000. Learned counsel also submitted that the complaint was filed belatedly after seven days, only due to the fact that one of the accused had already filed the police case against the complainant and accordingly, the impugned order cannot be sustained in the eyes of law. 6. Learned counsel for the State as also learned counsel for the opposite party No. 2 have submitted that the offence is clearly made out against the petitioners on the basis of the statements made in the complaint petition, fully supported in the statement of the complainant recorded on solemn affirmation and the statement of the witnesses examined at the enquiry stage. Learned counsel further submitted that there is no illegality in the impugned order passed by the Court below and since the prima facie offence is made out against the petitioners on the basis of the enquiry, there was no occasion either for calling any report from the police, or for looking into the police report. 7. Having heard the learned counsels for both sides and upon going through the record, I find that the complaint was filed in the Court below on 7.7.2000. It appears that the statement of the complainant was also recorded on 7.7.2000 itself. It is stated in paragraph-4 of this application that the other two witnesses were examined at the enquiry stage on 31.7.2000 and 8.8.2000 respectively. It appears that thereafter by order dated 18.9.2000, the report of the police was called for by the learned Chief Judicial Magistrate, Palamau at Daltonganj. 8. Section 202 (1) of the Cr.P.C. reads as follows:- “202. It is stated in paragraph-4 of this application that the other two witnesses were examined at the enquiry stage on 31.7.2000 and 8.8.2000 respectively. It appears that thereafter by order dated 18.9.2000, the report of the police was called for by the learned Chief Judicial Magistrate, Palamau at Daltonganj. 8. Section 202 (1) of the Cr.P.C. reads as follows:- “202. Postponement of issue of process-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding : *** *** ***” 9. A plain reading of Section 202(1) of the Cr.P.C., shows that upon receipt of the complaint by the Magistrate, the Magistrate may either inquire into the case himself or direct an investigation to be made by the Police Officer. In the present case, the Magistrate had entered into an enquiry himself and had recorded the statement of the complainant on solemn affirmation and had also recorded the statements of two witnesses on behalf of the complainant. In that view of the matter, there was no occasion for the Magistrate to call for the police report, once he had already entered into an enquiry himself and as such, any police report called by the Magistrate was only a redundant exercise and could not be taken into consideration. 10. From the perusal of the complaint petition, it is apparent that there are allegations against the petitioners of assaulting the complainant and his family members, of outraging the modesty of the wife of the complainant and also of committing theft of silver and gold ornaments of the complainant which clearly made out the offence against the petitioners. These allegations are also supported by the complainant in his statement on solemn affirmation and the statements of the witnesses examined by the complainant in the enquiry stage. These allegations are also supported by the complainant in his statement on solemn affirmation and the statements of the witnesses examined by the complainant in the enquiry stage. Whether the delay of seven days, in the facts of the case, shall be fatal to the complaint case or not, or whether the petitioners have been falsely implicated in the case, are the matters to be decided during the trial of the case and no finding can be given at this stage. 11. I do not find any illegality in the impugned order passed by the Court below, finding prima facie offence against the petitioners on the basis of the allegations made against them. There is no merit in this application and the same is, accordingly, dismissed.