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2016 DIGILAW 1610 (RAJ)

Bhage Khan S/o Firoj Khan v. State of Rajasthan

2016-11-15

P.K.LOHRA

body2016
ORDER : Mr. P.K. Lohra, J. 1. Petitioners have laid this misc. petition under Section 482 Cr.P.C. imploring annulment of impugned order dated 08.02.2013 passed by District and Sessions Judge, Jaisalmer (for short, 'learned revisional Court') affirming order dated 20.06.2011 passed by Chief Judicial Magistrate, Jaisalmer (for short, 'learned trial Court') framing charges against the petitioners for offences punishable under Section 147, 353, 332 read with Section 149 IPC. 2. The facts, apposite for the purpose of this petition, are that SHO, Police Station Thanwla filed a report on 13.05.2010 at Police Station Kotwali, Jaisalmer, inter-alia, alleging therein that while discharging his duties as SHO when he along with other police staff went to village Jawandh to serve summons to prosecutrix Indra Devi in case No. 05/10, the accused-petitioners prevented him from discharging his official duty and committed offences punishable under Section 143, 353 & 332 IPC. After investigation, charge-sheet against the petitioners was filed for the offences under Section 147, 332, 353/149 IPC. Learned trial Court, at the threshold, took cognizance against the petitioners for the aforesaid offences and thereafter, vide order dated 20.06.2011, framed aforesaid charges against the accused-petitioners. Being aggrieved by the same, petitioners approached the learned revisional Court but the said effort of the petitioners also proved abortive and the learned revisional Court has dismissed the revision petition. 3. Learned counsel for the petitioners, Mr. Joshi, submits that in fact prosecutrix Indra Devi has candidly stated in her statement under Section 161 Cr.P.C. that she has not been abducted by any person and she is living with the first petitioner out of her own volition then obviously there was no occasion for the SHO concerned to serve summons on her for her appearance. Learned counsel further submits that in fact, the prosecutrix has also reiterated before the Court under Section 164 Cr.P.C. the same version and in spite of that the accused persons approached her during odd hours to harass her and that in fact prompted the petitioners to put a reasonable resistance which has led to filing of the report and registration of case against them. Learned counsel further submits that if the impugned orders are allowed to be sustained, the same would result in miscarriage of justice. Lastly, Mr. Learned counsel further submits that if the impugned orders are allowed to be sustained, the same would result in miscarriage of justice. Lastly, Mr. Joshi would contend that for serious omissions and commission of the accused persons, i.e., S.H.O. and other police personnels, complaint was lodged by petitioner No. 4 for their high handed action and a competent Court has taken cognizance against the SHO and other police officials for offences under Section 147, 323, 365, 458 read with Section 149 IPC and criminal case is still pending against them is sufficient to show that charges slapped against the petitioners are per se improbable and if trial is allowed to be continued, it would be a sheer vexation of the proceedings. 4. Learned Public Prosecutor has opposed the prayer in general and submits that charges have been framed by the learned trial Court and affirmed by the learned revisional Court; therefore, no interference is warranted. 5. I have heard learned counsel for the petitioners as well as learned Public prosecutor and perused the materials available on record. 6. At the threshold, the matter came up before the Court on 11.07.2013 and the Court was pleased to pass following order:- "The counsel for the petitioners has relied upon the order passed by a coordinate bench of this Court in S.B. Criminal Misc. Petition No. 374/2010 on 06.05.2010. The order dated 06.05.2010 passed by this Court reads as under:- "Heard learned counsel for the petitioners. Learned counsel for the petitioners has produced the copy of the order dated 21.04.2010 passed by Judicial Magistrate, First Class, Degana District Nagaur in which Indra Devi being major stated that she is free to live where ever she wishes to live but despite that the police has registered the present FIR. Issue notice to the respondent. Call for the record. Meanwhile, no coercive steps shall be taken against the petitioners." The counsel for the petitioners has submitted that once Indira Devi had made statement before the Magistrate that she wanted to live according to her own wishes with petitioner No. 1, therefore, there was no justification for the police to come to the house of the petitioners to forcibly pick Indra Devi. The counsel states that the resistance given by the family members of the petitioners to restrain police from forcibly lifting Indra Devi had led to the registration of the present case as the police wanted to save its skin. Issue notice to the respondents for 04.09.2013. Meanwhile, further proceedings in the trial court are stayed." 7. There remains no quarrel that the prosecutrix on which summons were sought to be served by the accused persons was major at the relevant point of time as she was 22 of age and she has expressed in clear and unequivocal terms that she is living with the accused persons out of her own volition. This fact itself was sufficient to prima facie show that the offence under Sections 366 and 342 is not made out against the accused petitioners. It is also noteworthy that even after investigation in the case involving offence under Sections 366, 379 & 342 IPC, police submitted negative final report against accused petitioners which is accepted by the Court of competent jurisdiction on 17.01.2012. It is also noteworthy that the FIR was challenged by the accused-petitioners before this Court by way of S.B. Criminal Misc. Petition No. 374/2010 and the Court while granting indulgence has directed not to take any coercive action against them. Despite these admitted facts, the S.H.O. concerned accompanied by other police officials acted at whims and fancies proceeding for serving summons on prosecutrix during odd hours at the place of residence of the accused-petitioners, is really a matter of grave and serious concern. Police sleuths are essentially responsible for maintaining law and order and not to violate law or to act in a high handed manner for harassing innocent citizens. This serious omissions and commissions of the accused persons in approaching at the residence of the petitioners during odd hours to serve summons on prosecutrix without there being any lady constable is yet another serious omission which ought to have been taken note of by both the Courts below before framing charges against the petitioners. This serious omissions and commissions of the accused persons in approaching at the residence of the petitioners during odd hours to serve summons on prosecutrix without there being any lady constable is yet another serious omission which ought to have been taken note of by both the Courts below before framing charges against the petitioners. A very vital fact that the action of the accused persons in reaching at the place of resident of petitioners during odd hours and quarreling with them and acting in a high handed manner as members of unlawful assembly, has been taken cognizance of by a competent jurisdiction cannot lose sight of this Court while examining the impugned orders passed by the learned revisional Court as well as by the learned trial Court. 8. In totality, in the considered opinion of this Court, if the proceedings are allowed to be continued in the case for the aforesaid offences against the petitioners, that would obviously result in gross abuse of the process of the Court and is also likely to result in miscarriage of justice. 9. In above view of the matter, I feel inclined to exercise inherent jurisdiction of this Court to upset the impugned orders passed by the learned revisional Court as well as learned trial Court. 10. Resultantly, the instant misc. petition is allowed. The impugned orders passed by the learned revisional Court as well as learned trial court taking cognizance against the petitioners is quashed and set aside which obviously entails closure of the case finally.