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2020 DIGILAW 59 (RAJ)

Jaipal Singh v. State of Rajasthan

2020-01-06

SANJEEV PRAKASH SHARMA

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DECISION : Sanjeev Prakash Sharma, J. 1. By way of this Criminal Misc. Petition, the petitioner challenges the order dated 12/04/2019 passed by the learned Civil Judge and Judicial Magistrate, Bamanwas, District Sawaimadhopur whereby cognizance has been taken against the petitioner for the offences under Section 217 IPC. 2. Learned counsel for the petitioner submits that an FIR bearing No. 131/2018 was registered against the petitioner on the complaint of respondent No. 2-Suman Kumari at Police Station Batoda, District Sawaimadhopur. The said FIR was originally registered by the Station House Officer (SHO) under Section 143, 341, 323 IPC. The investigation was handed over to one Head Constable-Salamuddin who conducted the investigation. As regards the injuries caused to the injured-Suman Kumari, initially an MLR was given where the opinion was reserved regarding nature of injuries and X-Ray of skull was advised. A supplementary MLR was given on 25/09/2018 which mentioned that the bandage was not removed due to tenderness and X-Ray report is awaited. However, opinion was not given in the second supplementary MLR. After the X-Ray report was received, the Investigating Officer asked the Medical Jurist to give his opinion who stated in his report mentioning that "if the patient would not have been treated for the injuries caused on the head, it would have been fatal and caused death." 3. On an application moved by one accused-Hargyan, the District Magistrate directed to constitute a Medical Board to conduct medical of the injured and the Medical Board gave its opinion that "after going through the examination of treatment record, old & new X-Ray of skull and condition of patient, the Board is of the opinion that the injuries mentioned are not dangerous to life in ordinary course of nature at present." 4. On the said basis, the petitioner directed to the concerned SHO for submitting charge-sheet under Section 143, 341, 323, 325 and 504 IPC. The complainant-respondent No. 2 filed a complaint under Section 190 Cr.P.C. and prayed to take cognizance against the accused persons for offences under Section 307, 308 read with Section 149 IPC also alleging that the Police under influence of the accused persons had not submitted proper charge-sheet and had not filed charge-sheet as against accused Damodar and left him. 5. The complainant-respondent No. 2 filed a complaint under Section 190 Cr.P.C. and prayed to take cognizance against the accused persons for offences under Section 307, 308 read with Section 149 IPC also alleging that the Police under influence of the accused persons had not submitted proper charge-sheet and had not filed charge-sheet as against accused Damodar and left him. 5. The learned Magistrate, vide his order dated 12/04/2019 allowed the application and took cognizance for offences under Section 323, 341, 147, 148, 325/149, 504/149 and 307 IPC as against Damodar also apart from other accused. It took cognizance under Section 323, 341, 147, 148, 325/149, 504/149 IPC. 6. While passing the aforesaid order dated 12/04/2019, the learned Magistrate has, however, made observations with regard to the investigation conducted by the petitioner and found that the petitioner has not conducted the investigation properly and has deliberately left out one of the accused and has also failed to file charge-sheet under Section 307 IPC in respect of the injuries being in ordinary course fatal and dangerous to live had the treatment not been done in-spite of such opinion of the Medical Jurist which was not controverted by the Medical Board. Learned Magistrate, after taking cognizance for the offence under Section 217 IPC, however, has left the matter for the prosecution sanction from the concerned authorities for initiating action under Section 217 IPC as the petitioner is a Government servant. 7. Learned counsel for the petitioner submits that the petitioner was not given opportunity of hearing before passing of the order and further submits that the remarks made by the learned Magistrate be expunged and so far as the direction for taking cognizance against him for offence under Section 217 IPC is concerned, the same be quashed and set aside. 8. After hearing learned counsel for the petitioner and going through the material available on record, this Court finds that the order impugned passed by the learned Magistrate cannot be said to be in any manner illegal or unjustified. It is apparent that the learned Magistrate has power to take cognizance for any offence committed by any person in terms of the provisions of Cr.P.C. under Section 190 read with Section 200 Cr.P.C. 9. It is apparent that the learned Magistrate has power to take cognizance for any offence committed by any person in terms of the provisions of Cr.P.C. under Section 190 read with Section 200 Cr.P.C. 9. Once during the course of hearing and after examining the documents and statements on record, the Court reaches to a conclusion that any Investigating Officer or his superior has failed to perform his duty or has deliberately left out an accused from being arrayed as an accused and has also deliberately left out certain offence which is found to have been committed, prima-facie, in the charge-sheet filed before it, he may take cognizance under Section 217 IPC and also send the case to the Government for prosecution sanction in terms of Section 195 Cr.P.C. 10. Learned Magistrate has also noticed that the complainant Suman Kumari had filed a Criminal Misc. Petition before the High Court under Section 482 Cr.P.C. bearing No. 7430/2018 wherein the High Court passed following order:- "The learned Public Prosecutor for the State, to allay the apprehension of the petitioner, at the outset, has submitted that not only fair investigation shall be conducted but the report of the investigation along with the opinion of the investigating officer shall be submitted in the concerned court within a period of two months from the date of receipt of certified copy of this order by the Investigating Officer." 11. However, spite of such direction, the petitioner, who was admittedly the Investigating Officer, left out the accused Damodar from being made as an accused while the learned Magistrate has found him to have committed offence which includes the offence under Section 307 IPC and has taken cognizance thereto. 12. Apparently ingredients of IPC are found to be made out. Section 217 IPC reads as under:- "217. 12. Apparently ingredients of IPC are found to be made out. Section 217 IPC reads as under:- "217. Public servant disobeying direction of law with intent to save person from punishment or property from forfeiture.-Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or subject him to a less punishment than that to which he is liable, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or any charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 13. Having satisfied itself that, prima-facie, the petitioner, who was a senior Police Officer, had deleted part of the proposed charge-sheet for offence under Section 307 and 308 IPC and had also delete one of the accused proposed by the earlier Investigating Officer (a Senior Constable), the learned Magistrate has reached to the conclusion from the statements before it that offence under Section 307 IPC is found to be made out against Damodar who was not even included as an accused by the petitioner in the charge-sheet, the reasonable conclusion of offence under Section 217 CPC has rightly been arrived at as against the petitioner. The learned Magistrate has, however, not proceeded further leaving it for the Government to issue prosecution sanction as the petitioner is a Government servant. Such an approach adopted by the learned Magistrate cannot be said to be in any manner illegal or unjustified. The order impugned dated 12/04/2019 did not require hearing of the petitioner at the time of taking cognizance. However, the petitioner would always be free to make his representation before the authorities granting prosecution sanction and thereafter he would be also having other remedies available under the law. Therefore, at this stage, this Court does not find any reason to interfere with the order impugned dated 12/04/2019. 14. Consequently, the instant Criminal Misc. Petition is dismissed. All pending applications also stand disposed of.