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2023 DIGILAW 1764 (RAJ)

Radharaman v. State of Rajasthan

2023-09-14

BIRENDRA KUMAR

body2023
ORDER : Birendra Kumar, J. - Respondent No.2 has already been served however, no one appears on his behalf. 2. Heard learned counsel for the petitioners as well as the learned Public Prosecutor for the State. 3. The background leading to this petition under Section 482 Cr.P.C. is that respondent No.2 had filed an initial complaint against the petitioners which was forwarded to the police under Sections 156(3) Cr.P.C. by the Magistrate and FIR No.78/2009 was registered with Police Station Khandar, Sawai Madhopur for offences under Sections 323, 341, 441, 504 and 506 of Indian Penal Code and Section 3(v)(x) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989. 4. After investigation of the FIR, police submitted negative report vide FR No.42/2009. 5. Respondent No.2 filed a protest petition and the learned Magistrate conducted an inquiry treating the protest petition as complaint petition and after recording the statements of some of the witnesses came to the conclusion that offence under Section 447 of IPC and Section 3(v)(x) of SC/ST Act is made out against the petitioners. 6. Accordingly, cognizance was taken by impugned order dated 06.11.2010. 7. The impugned order was challenged before the learned Sessions Judge who affirmed the order of the Magistrate vide order dated 21.05.2015. 8. Both the orders are under challenge herein. 9. The case of the complainant is that the complainant was digging his khatedari land in village Khandar on 11.01.2009. One Radheyshyam was also working alongwith the complainant. At the same time, the named accused persons who are petitioners herein, variously armed with lathi came and stopped the complainant from digging the land, Petitioner Radharaman said that complainant has no land there, therefore, he should go away. Further allegation is of commission of abuse by taking caste name and assault as well. 10. The witnesses examined during inquiry have supported the allegation as eye-witness of the incident. The complainant has specifically stated in his evidence that witness Radheyshyam S/o Laxman was also there at the time of incident. 11. Radheyshyam, Mangal, Hemraj and Parasram are witnesses of inquiry under Section 202 Cr.P.C. and they have also supported the allegation of assault and abuse committed by the accused persons. 12. Learned counsel for the petitioners submits that in fact no such incident had taken place at any public place or public view, therefore, offence of SC/ST Act are not attracted. Radheyshyam, Mangal, Hemraj and Parasram are witnesses of inquiry under Section 202 Cr.P.C. and they have also supported the allegation of assault and abuse committed by the accused persons. 12. Learned counsel for the petitioners submits that in fact no such incident had taken place at any public place or public view, therefore, offence of SC/ST Act are not attracted. Moreover, there is no reference of boundary in the sale deed of the informant to ascertain the actual possession of his land, therefore, it cannot be alleged that the petitioners were trespassers. Learned counsel for the petitioners next contends that in fact the petitioners are victim of atrocity by the informant misusing the protection of law. Learned counsel for the petitioners further contends that the learned Magistrate while disagreeing with the police report has not assigned any reason for disagreement, though the Magistrate is competent to disagree with the police report. 13. Learned Public Prosecutor for the State submits that only prima facie case is to be looked into at the stage of cognizance, meticulous appreciation is not permissible at the stage of cognizance. 14. No doubt, the Magistrate has power to disagree with the police report if there is material collected during investigation to substantiate the disagreement. However, it is not a case of disagreement with the police report rather, it is a case wherein the Magistrate proceeded on protest petition filed against the police report treating the protest petition as compliant case. The learned Magistrate opted to collect evidence to substantiate the claim of the complainant before proceeding further. The Magistrate has noticed that though there was no mention of the boundaries of the land purchased by the complainant but the petitioners have not claimed any adjacent land hence, it cannot be argued that no case of trespass is made out. Moreover while taking cognizance on protest petition, there is evidence of the witnesses which prima facie discloses commission of cognizable case against the petitioners. 15. The place of incident was an open place and one Radheyshaym S/o Laxman was also there, therefore, it cannot be canvassed that the incident did not take place in public view. Moreover while taking cognizance on protest petition, there is evidence of the witnesses which prima facie discloses commission of cognizable case against the petitioners. 15. The place of incident was an open place and one Radheyshaym S/o Laxman was also there, therefore, it cannot be canvassed that the incident did not take place in public view. The requirement of law that the incident should have taken place "in any place within pubic view" stands fulfilled, if the place of incident is accessible by vision of anyone, who may be a neighbour peeping from his window, a passerby or a relative and helper sitting with the victim. 16. The malice etc. in the mind of the complainant could not be considered at the initial stage. Probable defence of the accused petitioners would be considered at the appropriate stage of the trial. 17. Therefore, I do not find any reasons to interfere with the impugned orders of the courts below. 18. Accordingly, the instant petition stands dismissed.