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2017 DIGILAW 1614 (RAJ)

PRAHLAD RAM v. STATE OF RAJASTHAN

2017-07-21

PUSHPENDRA SINGH BHATI

body2017
ORDER : Pushpendra Singh Bhati, J. The petitioner has preferred this misc. petition under Section 482 Cr.P.C., 1973 against the order passed by learned Additional Sessions Judge No.3, Bikaner, dated in criminal revision No.21/2015 (81/2015) whereby learned Addl. Sessions Judge dismissed the revision filed by petitioner and confirmed the order passed by Judicial Magistrate, Nokha dated 8.12.2014 in Crl Case No.1012/2014 FIR No.634/2013 P.S. Nokha, whereby learned Judicial Magistrate dismissed the application filed by the petitioner under Section 190 Cr.P.C., 1973 for taking cognizance for offence under Section 367 IPC. 2. At the outset, learned counsel for the petitioner has drawn attention to this Court to the definition of Section 367 of IPC, which reads as follows: "Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.- Whoever kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such, person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine." 3. Learned counsel for the petitioner has also drawn attention to the Court to provision of section 190 of Cr.P.C., 1973 which reads as follows: "Cognizance of offences by Magistrates:-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a compliant of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try." 4. As per learned counsel for the petitioner the ingredient of the offence under section 367 of Cr.P.C., 1973 required Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.. As per learned counsel for the petitioner the ingredient of the offence under section 367 of Cr.P.C., 1973 required Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.. Learned counsel for the petitioner has reflected from the orders as well as from the record particularly the statement of one-Prahlad Ram under Section 161 Cr.P.C., 1973 that at the time of kidnapping itself, the accused caused grievous hurt to the complainant. The learned court below has refused invoking section 190 of Cr.P.C., 1973 on the ground that the kidnapping, grievous hurt at the inception of kidnapping is not shown. Whereas, on the bare reading of the FIR as well as statement so pointed out, the grievous hurt is pointed out at the time of kidnapping itself and moreover, once the prosecution has accepted that the petitioner has committed offence of causing grievous hurt as well as kidnapping than the provision having both ingredients to give it the definition of section 367 of Cr.P.C., 1973 5. Learned counsel for the respondent and the learned Public Prosecutor vehemently opposed and argued that the grievous hurt was separate from that of kidnapping and kidnapping and grievous hurt have been independently charged and, therefore, section 367 of Cr.P.C., 1973 by invoking the procedure and 190 of Cr.P.C. cannot be taken cognizance against. 6. Learned counsel for the petitioner has relied upon the judgment of Dharampal and Ors. v. Smt. Ramshri and Ors. reported in AIR 1993 Supreme Court 1361, in which Section 397(3) prohibits Section provision, which is power of law, this Court has ample power section 342 of Cr.P.C., 1973 to check the abuse of process of law and apparently the impugned orders if proceeded against shall amount to abuse of process of law. Proper Section of cognizance if incorporated then the direction of trial shall be wrong and same shall cause injustice to both the parties as well as shall caused waste of precious of time of learned court below. 7. In light of the aforesaid discussion, the present petition is allowed.