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2017 DIGILAW 2465 (RAJ)

Mohammad Akil Sayed v. State of Rajasthan

2017-11-09

PUSHPENDRA SINGH BHATI

body2017
ORDER : Pushpendra Singh Bhati, J. The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C., 1973 against the order dated 29.08.2017 passed by the learned Sessions Judge, Jalore in Criminal Revision Case No. 06/2016 whereby the learned Sessions Judge has dismissed the Revision Petition filed by the petitioner against the order dated 18.12.2015 passed by the learned Additional Chief Judicial Magistrate No. 1, Jalore in Criminal Case No. 345/2006 by which the learned Additional Chief Judicial Magistrate has taken cognizance and framed charge against the petitioner for the offence under Section 211 IPC. 2. At the outset, learned counsel for the petitioner has submitted that as per the spirit of Section 340 Cr.P.C., 1973 in case the cognizance and charges are to be farmed under Section 211 IPC, then a notice and reasonable opportunity of hearing with a preliminary inquiry is necessary. 3. Learned counsel for the petitioner has relied the judgment of Gheesu Lal v. State of Rajasthan reported in 1998 Cr.L.R. (Raj.) 276 and Sanjiv Arora v. State of Rajasthan reported in 2006 (3) CJ (Raj.) Cr. 1313. The relevant portion of judgment rendered in Gheesu Lal (supra) reads as under: "11. There is another reason for quashing the proceedings. The learned Chief Judicial Magistrate could not himself take cognizance of the offence under Section 211 IPC on the basis of the complaint which he had himself signed as the case before him was not covered by any exception to the general rule that the complainant should not act as a Judge in his own cost. Sub-section (1) of Section 340 Cr.P.C., 1973 clearly provide in clause (c) that the complaint is to be sent to the Magistrate of first class having jurisdiction. By implication, the general rule laid down in Clause (c) of sub-section (1) of Section 340 Cr.P.C., 1973 requires that the Court making the complaint under Section 340 Cr.P.C., 1973 should be sent to the first class Magistrate for necessary action. By implication, the general rule laid down in Clause (c) of sub-section (1) of Section 340 Cr.P.C., 1973 requires that the Court making the complaint under Section 340 Cr.P.C., 1973 should be sent to the first class Magistrate for necessary action. Section 352 Cr.P.C., 1973 provides that; "Except as provided in Sections 344, 345, 349 & 350, no Judge of a Criminal Court (other than a Judge of a High Court) or Magistrate shall try any person for any offence referred to in Section 195, when such offence is committed before himself or in contempt of his authority, or is brought under his notice as such Judge or Magistrate in the course of a judicial proceedings." 12. On a careful consideration, I am, of the opinion that u/Cl.(c) of sub-section (1) of Section 340 Cr.P.C., 1973 the learned Chief Judicial Magistrate should not have taken cognizance on the basis of the complaint signed by himself. He should have forwarded the complaint to a Magistrate of first class having jurisdiction. 13. For the above reasons the petition deserves to be allowed and is hereby allowed. The order dated 1.5.1986 passed by the learned Chief Judicial Magistrate for initiating proceedings against the petitioner by taking cognizance in respect of the offence punishable under Section 211 IPC and the impugned order dated 09.07.1992 passed by the learned Judicial Magistrate in criminal case No. 674/86 State v. Gheesu Lal whereby the application filed by the petitioner was rejected, are hereby quashed and set aside and the proceedings against the petitioner are hereby dropped." 4. Learned Public Prosecutor has opposed the same by saying that the protest petition which was not accepted by the learned court below has sufficiently discussed the issue and therefore, a prima-facie offence with the petitioner's complaint was unjustified, the proceedings have been initiated. 5. Section 340 Cr.P.C., 1973 reads as under: "340. Procedure in cases mentioned in section 195. Learned Public Prosecutor has opposed the same by saying that the protest petition which was not accepted by the learned court below has sufficiently discussed the issue and therefore, a prima-facie offence with the petitioner's complaint was unjustified, the proceedings have been initiated. 5. Section 340 Cr.P.C., 1973 reads as under: "340. Procedure in cases mentioned in section 195. (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court. (4) In this section," Court" has the same meaning as in section 195." 6. (3) A complaint made under this section shall be signed,- (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court. (4) In this section," Court" has the same meaning as in section 195." 6. After hearing learned counsel for the parties and perusing the record of the case as well as precedent law cited at Bar, this Court is of the opinion that once the proceeding have to be initiated against the present petitioner in respect of his earlier proceeding then there has to be a preliminary inquiry. 7. This Hon'ble Court in its judgment rendered in the case of Ghisu Lal (supra) dealt with the situation and has given a reasoning with the cognizance under Section 211 IPC on the basis of the complaint which had himself signed as the case before him was not covered by any exception to the general rule that the complainant should not act as a Judge in his own cost. Further the Sub Section (1) of Section 340 Cr.P.C., 1973 clearly provides in clause (c) that the complaint is to be sent to the Magistrate of first class having jurisdiction. 8. This Court is also of the opinion that the precedent law laid down by this Court is covering the issue and the learned court below ought to have given a notice to the present petitioner and heard him on merits before initiating any proceeding under Section 211 IPC in accordance with Section 340 Cr.P.C., 1973 9. In light of the aforesaid observations, the present petition is allowed and the order dated 29.08.2017 passed by learned Sessions Judge, Jalore in Criminal Revision Case No. 06/2016 and impugned order dated 18.12.2015 passed by learned Additional Chief Judicial Magistrate No. 1, Jalore in Criminal Case No. 345/2006 are hereby quashed and set aside and the matter is remanded back to the learned court below to take appropriate action strictly in accordance in law after conducting preliminary inquiry and giving sufficient opportunity of hearing to the petitioner before initiating the proceeding under Section 211 I.P.C.