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2018 DIGILAW 2178 (RAJ)

Narendra Singh Rajawat v. State of Rajasthan

2018-11-01

KANWALJIT SINGH AHLUWALIA

body2018
JUDGMENT : KANWALJIT SINGH AHLUWALIA, J. 1. The present petition has been filed under Section 482 Cr.P.C. by the accused praying that the order dated 6.9.2017 passed by Additional Sessions Judge, Malpura, Tonk whereby cognizance of offences was taken against the petitioner under Sections 452, 341 and 354 IPC be set aside. 2. This Court on 11.4.2018 had passed the following order:- "Present petition has been filed to assail the impugned order dated 13.5.2014 passed by the Judicial Magistrate, First Class, Malpura, District Tonk alongwith the order dated 6.9.2017 passed by the Additional Sessions Judge, Malpura, District Tonk, whereby order of cognizance was affirmed. Learned counsel for the petitioner has submitted that respondent No. 2 Ajeet Singh had filed a complaint and on the said complaint, orders were passed under Section 156(3) Cr.P.C. and in consequence thereof, FIR No. 47/2012, was registered at Police Diggi, District Tonk for offences under Sections 341, 323, 354, 452 IPC. Learned counsel contends that the said complaint was investigated and the investigating agency has submitted Final Report in negative form holding that the complainant has lodged false FIR. Learned counsel submits that for coming to conclusion that complainant has lodged false FIR, the investigating agency has given following four reasons:- (a) That the accused-petitioner, on the day of incident, was not present at the place of occurrence. Investigating agency has accepted the plea of alibi against the petitioner. (b) Bablu @ Ramnarain, co-accused of the petitioner, had lodged a FIR in which vide judgment (Annx. 7) complainant was convicted. Thus, the investigating agency held that the FIR registered at the instance of complainant Ajeet Singh was a counter-blast. (c) Investigating Officer further came to the conclusion that the allegation leveled by the complainant that he has suffered injuries, is not corroborated by the medical evidence. (d) The Investigating Officer further held that there are material contradictions between the statements made by the witnesses and the complainant and hence, the version is not reliable. Learned counsel for the petitioner contends that after the Final Report in negative form was submitted, the trial judge relying upon the preliminary evidence, recorded statements of the witnesses under Section 202 Cr.P.C. and took cognizance of the offences against the petitioner and co-accused without referring the above reasons spelt by the Investigating Officer. Learned counsel for the petitioner contends that after the Final Report in negative form was submitted, the trial judge relying upon the preliminary evidence, recorded statements of the witnesses under Section 202 Cr.P.C. and took cognizance of the offences against the petitioner and co-accused without referring the above reasons spelt by the Investigating Officer. To fortify the above submission, learned counsel has relied upon the judgment rendered by the coordinate Bench at Principal Seat at Jodhpur in Criminal Misc. Petition No. 234/2012, titled Ajendra Agarwal vs. State of Rajasthan & Ors., decided on 04.10.2016. A perusal of the above said judgment reveal that in that case cognizance was taken by the Magistrate under Section 190 Cr.P.C. What is legal position if the court treat the protest petition as a complaint and record preliminary evidence of the witnesses under Section 202 Cr.P.C., learned counsel for the petitioner prays for adjournment to assist this court. Shri S.S. Hora, Advocate, who is present in court, is directed to assist this court as Amicus Curiae. Learned counsel for the petitioner is directed to supply copy of the petition to Shri S.S. Hora, Amicus Curiae, during the course of the day. List on 16.04.2018." 3. Today, Mr. S.S. Hora Advocate being Amicus Curiae has assisted this Court and has canvassed that even if the Magistrate proceeds with the protest petition as a Complaint under Chapter XV of Code of Criminal Procedure, he has to consider the report submitted by the police in negative form. Mr. Hora, in support of his contention has relied upon the judgment of learned Single Judge of this Court in Ashok Kumar vs. State of Rajasthan, 1990 RCC 361. I have also considered this question in Vikas Kumar vs. State of Rajasthan, 2015 (1) Cr.L.R. 32 . 4. Recently, this Court had rendered judgment in S.B. Criminal Misc. Petition No. 4921/2018 titled Shivcharan & Ors. vs. State of Rajasthan & Anr. Decided on 20.8.2018, and the said judgment reads as under:- "Present petition has been filed to assail the order dated 2.5.2017 passed by the Court of Judicial Magistrate, Dausa, whereby it took cognizance for offences under Sections 420, 467, 468, 471, 120B IPC. It is further prayed that the order dated 19.7.2018 passed by the revisional court below whereby the order of cognizance was affirmed, be also set aside. It is further prayed that the order dated 19.7.2018 passed by the revisional court below whereby the order of cognizance was affirmed, be also set aside. Learned counsel for the petitioners at the outset has relied upon the judgment rendered by the coordinate Bench at Principal Seat at Jodhpur in Kanhaiyalal & Anr. vs. State of Rajasthan & Anr., 2011(2) Cr.L.R. (Raj.) 1523 to contend that the court below while taking cognizance of offences has not given reasons to differ with the report of Investigating Officer. Para-2 of the judgment in Kanhaiyalal & Anr. (supra) reads as under:- "2. Assailing the said order, the learned counsel for the petitioners has submitted that before proceeding to take cognizance on the final report submitted by the Police, it was obligatory for the learned Magistrate to have given reasons as to why he was disagreeing with the reasons given in the final report. It has further been submitted that the learned Magistrate has simply made bald observation that he had considered the statements recorded under Section 161 Cr.P.C., but he has not touched the reasons given by the Investigating Agency before proceeding to take cognizance. The counsel has also relied upon the decision of this Court rendered in the case of Bhagwan Sahai Khandelwal & Ors. vs. State of Rajasthan, 2006(2) RCC 853." The judgment relied by the learned counsel for the petitioners is not attracted on the facts of the case. After investigation of FIR, if the investigating agency submits Final Report in negative form, the Magistrate has following four options:- (a) The Magistrate can accept the Final Report in negative form after issuing notice to the complainant and after affording opportunity of hearing to the complainant. (b) The Magistrate can take cognizance of offences on the Final Report submitted by the investigating agency. (c) The Magistrate can send the Final Report for further investigation. (d) The Magistrate can proceed under Chapter-XV of Code of Criminal Procedure. The Magistrate can also record statement of the complainant and his witnesses under Section 200 Cr.P.C. In the present case, Magistrate proceeded under Chapter-XV of Code of Criminal Procedure and recorded preliminary evidence of the complainant and his witnesses. When the Magistrate follow last course and proceed under Chapter-XV of Code of Criminal Procedure, he is not bound to give reasons to differ with the report of the Investigating Officer. When the Magistrate follow last course and proceed under Chapter-XV of Code of Criminal Procedure, he is not bound to give reasons to differ with the report of the Investigating Officer. In the judgment relied, it is only stated that the Magistrate while considering statements recorded under Section 161 Cr.P.C. has not dealt with the reasons given by the investigating agency. In the present case, the Magistrate has followed the procedure of complaint case under Chapter-XV. Therefore, he has to confine himself to the statements recorded under Section 200 Cr.P.C. Therefore, the judgment relied is not applicable and it is not obligatory on the part of Magistrate to give reasons to differ with the report of the Investigating Officer as Magistrate decided to proceed under Chapter-XV of Code of Criminal Procedure. The learned counsel appearing for the petitioners has made an alternative submission that the arrest warrants issued by the Court below be converted as bailable warrants. Counsel appearing for the petitioners has relied upon the case of Inder Mohan Goswami & Another vs. State of Uttaranchal & Others, reported in AIR 2007 12 SCC 1 , to contend that the trial Court at first instance should not have issued warrant of arrest to summon the petitioners, in a case where the Investigating Agency has submitted a Final Report in negative form. Counsel has further relied upon the case of Manohar Lal Saini & Others vs. State of Rajasthan, reported as 2016 (1) CJ (Cri.) (Raj.) 289, to contend that the Division Bench has held that where the accused are summoned under Section 319 Cr.P.C. as an additional accused, the arrest warrants should not be issued. Counsel appearing for the petitioners, on the basis of same analogy, has contended that the ratio of law laid down in the case of Manohar Lal Saini (supra) shall also apply mutatis mutandis where the accused is summoned in a Final Report submitted in negative form. I have heard learned counsel appearing for the petitioners and learned Public Prosecutor appearing for the State. In the light of arguments raised, the arrest warrants issued against the petitioners are converted as bailable warrants. In view of above, the present petition is disposed of." 5. Mr. I have heard learned counsel appearing for the petitioners and learned Public Prosecutor appearing for the State. In the light of arguments raised, the arrest warrants issued against the petitioners are converted as bailable warrants. In view of above, the present petition is disposed of." 5. Mr. S.S. Hora, with all eloquence at his command in a very erudite manner has referred to (i) Vasanti Dubey vs. State of Madhya Pradesh, (2012) 2 SCC 731 , (ii) B. Chandrika vs. Santosh & Anr., (2014) 13 SCC 699 , and (iii) Jagdish Ram vs. State of Rajasthan & Anr., (2004) 4 SCC 432 . 6. Mr. Hora, has canvassed that if police has submitted Final Report in negative form, then it is mandatory for the Magistrate to consider the report alongwith documents gathered by the investigating agency and consideration of the Magistrate should be apparent in the order passed by him while taking cognizance of offences. 7. During the course of arguments, this Court has observed different considerations prevail at the time of taking of cognizance of offences, at the time of formulation of charges and in case accused is to be summoned under Section 319 Cr.P.C. 8. What is difference between taking of cognizance of offences upon police report and issue of process under Section 204 Cr.P.C., has been considered by the Supreme Court in Bhushan Kumar & Anr. vs. State (NCT of Delhi) & Anr., (2012) 5 SCC 424 . It will be apposite here to reproduce Para Nos. 9 to 13 of the judgment rendered by Supreme Court in Bhushan Kumar's case (supra) as under:- "9. The questions which arise for consideration in these appeals are: (a) Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear? (b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same? 10. In this context, it is relevant to extract Sections 190 and 204 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") which read as under: 190. Cognizance of offences by Magistrates. (b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same? 10. In this context, it is relevant to extract Sections 190 and 204 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") which read as under: 190. 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 complaint 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. 204. Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under Subsection (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of Section 87. 11. In Chief Enforcement Officer vs. Videocon International Ltd. and Ors. (5) Nothing in this section shall be deemed to affect the provisions of Section 87. 11. In Chief Enforcement Officer vs. Videocon International Ltd. and Ors. (2008) 2 SCC 492 , the expression "cognizance" was explained by this Court as it merely means "become aware of" and when used with reference to a Court or a Judge, it connotes "to take notice of judicially". It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process Under Section 204 of the Code. 12. A "summons" is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished Under Section 174 Indian Penal Code. It is a ground for contempt of Court. 13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. It is a ground for contempt of Court. 13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued. (Emphasis supplied)" 9. Mr. Hora, learned Amicus Curiae is in agreement that while passing order of cognizance of offences, the Magistrate is not bound to state reasons and the order of cognizance need not be speaking order. Mr. Hora has also very fairly submitted that it is to be borne in mind that whether the evidence is adequate for supporting conviction, can be determined only at the stage of the trial and not at the stage of inquiry. 10. In Para No. 14 of Bhushan Kumar's case (supra) it is observed that under Section 204 Cr.P.C. no explicit reasons are to be stated because it is imperative that Magistrate must have taken note of preliminary evidence and has applied mind to the allegations made in the police report and the materials filed therewith. Therefore, at the time of passing of order of cognizance, having taken police report into consideration and the preliminary evidence led by the complainant under Chapter XV Cr.P.C., it is to be assumed that Magistrate has applied mind as he is not bound to state reasons as to why he is differing with the police report. Therefore, it cannot be said that at the stage of taking cognizance, the Magistrate has to weigh the statements of the complainant examined under Section 200 Cr.P.C. and evidence gathered by police in the form of police report. At that stage, Magistrate has not to sift the evidence nor has to analyze the same if from the perusal of the police report and the evidence led by the complainant in preliminary evidence, Magistrate is convinced that there are sufficient reasons to proceed against the accused. He will take cognizance of the offences. At that stage, Magistrate has not to sift the evidence nor has to analyze the same if from the perusal of the police report and the evidence led by the complainant in preliminary evidence, Magistrate is convinced that there are sufficient reasons to proceed against the accused. He will take cognizance of the offences. At that stage, the Magistrate has not to threadbare deal with the police report or preliminary evidence taken. 11. To illustrate, if a Magistrate after taking a police report into consideration, comes to a conclusion that no offence is made out, but after reading preliminary evidence comes to conclusion that indeed the complainant has been able to make out a prima facie case against the accused, even in case of doubt, Magistrate there being a sufficient material to proceed against the accused can pass the order of summoning without stating reasons as to why he is differing with the police report, as the test and standard to be applied at the stage of summoning accused for offences to be tried is whether sufficient material is available to proceed against the accused or not. 12. In view of above, no ground is made to vary the view formulated by this Court earlier in case of Vikas Kumar vs. State of Rajasthan (supra). 13. At this stage, Mr. Sneh Deep Singh, learned counsel for the petitioner has submitted that so far merits of the case are concerned, he will not press the arguments raised in the present petition and the present petition be dismissed as withdrawn with liberty to the petitioner to raise all arguments available to him before the trial court at appropriate stage including at the stage of consideration of charges. 14. Having clarified the legal position, as prayed by the learned counsel for the petitioner, the present petition is dismissed as withdrawn with liberty to the petitioner to raise all arguments available to him before the trial court at appropriate stage. 15. As a parting note, this Court Place on record its appreciation for the assistance rendered by Mr. S.S. Hora, Amicus Curiae.