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2017 DIGILAW 1505 (RAJ)

Akabar Khan @ Nadeem v. State of Rajasthan

2017-07-07

PUSHPENDRA SINGH BHATI

body2017
ORDER : Pushpendra Singh Bhati, J. The petitioners have preferred this criminal misc. petition under Section 482 Cr.P.C. against the order passed by learned Additional Sessions Judge, Deedwana dated 28.04.2016 in criminal revision petition No. 12/2016 Akabar Khan & Ors. v. State & Anr. Whereby learned Additional Sessions Judge dismissed the revision petition filed by the petitioners and confirmed the order dated 14.03.2016 passed by learned Additional Chief Judicial Magistrate, Deedwana in criminal case No.52/2016 State v. Akabar Khan & Ors. FIR No.207/2015 PS Deedwana, whereby learned Additional Chief Judicial Magistrate took the congnizance against the accused petitioners for offence under Sections 341, 323/149, 147, 148 of IPC. 2. On the complaint made by the complainant, SHO Police Station Deedwana (Nagaur) proceeded with the investigation. The police submitted charge-sheet against accused-petitioners Akbar Khan @ Nadeem Khan and Daud Khan for the offences under Sections 341, 323 of IPC but the police did not find the case to be made out against accused petitioners No.3 to 16, and thus, submitted negative final report in the Court of Additional Chief Judicial Magistrate, Deedwana. The concerned Court issued notice to the complainant on the FR submitted by the police and on such notice the complainant appeared and preferred an application for taking cognizance against rest of the petitioners Nos.3 to 16, and on the basis of the statements recorded by the police under Section 161 of Cr.P.C., the cognizance was taken against all the petitioners under Sections 341, 323/149, 147, 148 of IPC vide order dated 14.03.2016. Thereafter, the learned Additional Session Judge, Deedwana dismissed the revision petition and upheld the cognizance order. 3. Learned counsel for the petitioners, first of all, has shown to this Court the injury report, which clearly reflects two injuries; one lacerated wound and second was complaint of pain. However, no external injury was sustained. Thus, virtually, the injury report reflects only one injury. Thereafter, learned counsel for the petitioner has shown the police report, whereby the aforementioned two persons have been charge-sheeted and the case against rest of the persons have been closed. 4. Learned counsel for the petitioners has drawn attention of this Court towards the cognizance order as well as the revisionary order. Thereafter, learned counsel for the petitioner has shown the police report, whereby the aforementioned two persons have been charge-sheeted and the case against rest of the persons have been closed. 4. Learned counsel for the petitioners has drawn attention of this Court towards the cognizance order as well as the revisionary order. As per learned counsel for the petitioners, the implication of the petitioners No.3 to 16 in the alleged offences does not speak of a reasonable implication, rather it only says that since the complainant has named all the persons, therefore at this stage, it was sufficient for taking cognizance against those persons. 5. Learned counsel for the petitioners also tried to submit from the impugned order that since the same witnesses have made the investigating authority to believe that Akbar Khan @ Nadeem Khan and Daud Khan were prima facie responsible for the alleged incident, therefore, there is no reason to believe why other persons have been implicated in the case. 6. Learned counsel for the petitioners has placed reliance on the precedent law laid down by this Court in Sukhdas & Ors. v. State of Rajasthan (S.B. Criminal Revision No.525/1997) reported in 2001 Cr.L.R. (Raj.) 364, the relevant portion of which is as follows :- "Thus, the two categories of cases, one being where the police submits a total negative report (Adam Vakua and/or Adam Pata), and the other category of cases where the police submits charge-sheet against some of the accused persons while gives a final negative report against some of the accused persons, do stand on a different footings and the power of the Magistrate so also the bar against the power of the Magistrate available or applicable to one category of cases cannot be applied to the other category of cases where the offence being the one exclusively triable by the Court of Sessions. And consequently it is held that though in cases where the police submits charge-sheet against some of the accused persons, the Magistrate cannot proceed against the remaining accused persons, this bar cannot be applied to cases where the police submits a total negative report, so as to deprive the learned Magistrate of the power of taking cognizance. And consequently it is held that though in cases where the police submits charge-sheet against some of the accused persons, the Magistrate cannot proceed against the remaining accused persons, this bar cannot be applied to cases where the police submits a total negative report, so as to deprive the learned Magistrate of the power of taking cognizance. Likewise since the learned Magistrate has the power of taking cognizance in cases where police submits a total negative final report, the Magistrate cannot be held to have power to proceed against the remaining accused persons where police submits charge-sheet against some of the accused persons, by invoking the principle that qua left out accused persons, the police report tantamounts to giving of final negative report." 7. Learned counsel for the petitioners has argued on the basis of aforesaid precedent law that if the police submits a negative final report, then it is distinguishable from the circumstances where police submits charge-sheet against some of the accused persons and final report against other accused persons. Learned counsel for the petitioners has also stated that the precedent law clearly stipulates that where the police submits charge-sheet against some of the accused persons, the learned court below should not proceed against the remaining accused persons, particularly while invoking the powers under Section 190 of Cr.P.C. 8. Learned Public Prosecutor has submitted that the impugned orders are well reasoned orders and once the learned court below has relied upon the evidence of certain set of witnesses then the cognizance order is well justified. 9. Learned counsel for the complainant has vehemently opposed the proposition being made by the learned counsel for the petitioners pertaining to the precedent law cited above. Learned counsel for the complainant has stated that in the case of Hardeep and Dharmpal, Hon'ble Apex Court has reversed the aforementioned proposition laid down in the precedent law and has in fact clarified the ample powers of the court under Section 190 of Cr.P.C observing that the powers under Section 190 of Cr.P.C. are available with the learned Court below for the purpose of taking cognizance against the accused persons, where the case is made out for taking such cognizance. Learned counsel for the complainant has also stated that the impugned orders are perfectly justified, in light of the statement made by the complainant. 10. Learned counsel for the complainant has also stated that the impugned orders are perfectly justified, in light of the statement made by the complainant. 10. After hearing the leaned counsel for the parties as well as perusing the record of the case along with the precedent law cited at the Bar, this Court is of the opinion that without discussing the powers of taking cognizance, this is clearly a case where there is over implication of the other accused persons. On the face of it, it is highly improbable that only one injury can be caused by sixteen persons, and therefore, while exercising the powers under Section 190 of Cr.P.C., the learned Court below ought to have considered the high improbability of occurrence of such an incident, where so many persons could be held responsible for causing a single injury. It is noticed by this Court that due to over anxiety, in various cases, the complainants have tendency to implicate more and more accused persons; in some cases even the complete family is being implicated with an intention to widen the scope of the litigation which ultimately leads to failure of the proceedings resulting into benefit to the accused persons while focused and determinative charge with a clarity of correlation between the circumstantial evidence and eye-witnesses, which is a better mode of conducting the trial so as to attain the best results out of the judicial process. 11. This Court is thus of the opinion that merely mentioning of some names would not implicate them for exercising of the powers under Section 190 of Cr.P.C. which has to be very cautiously done so as to ensure that the persons against whom cognizance was taken shall be taken to a conclusive stage of trial and appropriate judgment would be passed. The arraying of parties cannot be a made as a matter of right and the matter of technicality as far as a criminal trial is concerned, there ought to be a high probability of the prima facie case, which would arise against the persons who are sought to be arrayed as accused persons, while exercising the powers under Section 190 of Cr.P.C.. Thus, while not questioning the powers under Section 190 of Cr.P.C. of the learned Court below which are very wide powers as per the Code of Criminal Procedure, this Court limits its adjudication to the over implication in this particular case, and hence, the version of the concerned investigating officer in this case, where the charge-sheet was filed against accused persons Akabar Khan @ Nadeem Khan and Daud Khan for the offences under Sections 341 & 323 of IPC is accepted. 12. In light of the aforesaid discussion, the present misc. petition is allowed to the extent of quashing the orders dated 28.04.2016 and 14.03.2016 qua the petitioners No. 3 to 16.