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2023 DIGILAW 996 (RAJ)

Pokar Mal v. State Of Rajasthan

2023-05-02

ASHOK KUMAR JAIN

body2023
ORDER : Mr. Ashok Kumar Jain, J. - Present appeal is preferred under Section 14(A)(1) of the SC/ST (POA) Act aggrieved from order dated 18.05.2019 passed by learned Special Judge, SC/ST (POA) Act cases, Jhunjhunu whereby while allowing the application under Section 193 Cr.P.C., trial Court has proceeded to take cognizance against the appellants under Sections 323 and 341 read with Section 34 IPC and Section 3(2)(v) of SC/ST (POA) Act. 2. In nutshell, the facts of the case are that an FIR No. 136/2018 was registered at P.S. Gudha Gorji on written complaint dated 07.04.2018 wherein it was alleged that when complainant visited her agricultural land, crop of Gram was disturbed and when she spoke to Pokar Mal about such dispersal of crop, he assaulted and humiliated with casteist slur and abusive language. On her call, her husband reached at the spot and was also abused and assaulted. Thereafter, Banarasi Devi, Pramila Devi and Ramdhan arrived at the spot and they assaulted her and her husband. After investigation, police submitted a charge-sheet against Banarasi Devi and Pramila Devi under Sections 341 and 323 read with Section 34 IPC and section 3(2)(v)(a) of SC/ST Act. Thereafter on application under Section 193 Cr.P.C., learned trial Court had proceeded to take cognizance against present appellant under Sections 341 and 323 read with Section 34 IPC and section 3(2) (v) of SC/ST Act. 3. Learned counsel for appellant submitted that the report itself indicated that no date and time of incident was mentioned in the report. He further submitted that when respondent-complainant was examined under Section 161 Cr.P.C., then only first time she disclosed the date and time of incident. Thereafter, she was examined under Section 164 Cr.P.C. wherein also no date and time was mentioned by complainant. He further submitted that police after detailed investigation concluded that both the appellants were not involved as they were not present at the spot. He further submitted that the record clearly indicated that appellant No.1 was on duty in his Army command and a certificate to this effect was obtained by Investigating Officer which was signed by Commanding Officer who is of Lieutenant Colonel rank. He further submitted that appellant No.2 was in Jaipur at the time of incident and a copy of bus ticket and also prescription slip of doctor wherein appellant No.2 had visited to Doctor is submitted on record. He further submitted that appellant No.2 was in Jaipur at the time of incident and a copy of bus ticket and also prescription slip of doctor wherein appellant No.2 had visited to Doctor is submitted on record. He further submitted that the Investigating Officer who is a senior police officer has verified the facts regarding involvement of present appellants and after verification it was found that both appellants were not present on the spot and they were not involved in the incident. He further submitted respondent-complainant out of vengeance, deliberately implicated appellants as one of the appellants was serving in army and ultimate objective was to spoil his career. He further submitted that the first incident with regard to allegation on Pokar Mal, no one except Pokar Mal and complainant were present but thereafter, so called injured and appellant with two accused remained present, therefore no one from public had witnessed the incident. He further submitted that even if assuming the fact then police had examined independent witnesses as well and they had not corroborated the story as narrated by respondent-complainant. He further submitted that without any prima facie case, learned trial Court ignored the outcome of investigation and had proceeded to take cognisance on the basis of solitary statement of complainant or her husband which cannot be appreciated wherein counter document to rebut the presence of present appellant was available and learned trial Court had failed to appreciate the reasons as given by police for not forwarding present appellant to face trial. At last, terming the order of cognisance as bad in law, he prayed to allow the appeal by setting aside the order of cognisance. 4. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for respondent. He submitted that just after incident, complainant had filed a written complaint and on the basis of report, an FIR was registered wherein involvement of two accused persons were found proved but remaining two appellants were deliberately left out by the police due to influence of present appellant. He further submitted that record clearly indicated that respondent complainant and her husband named both the appellants and their act in their statement. He further submitted that record clearly indicated that respondent complainant and her husband named both the appellants and their act in their statement. He further submitted that learned trial Court on the basis of material available on record had proceeded to take cognisance against additional accused as it is empowered under Section 193 Cr.P.C. to add additional persons not named by police in final charge-sheet. He further submitted that learned trial Court had assigned sufficient reasons and no grounds are made out for interference of this Court. 5. Herein the matter pertains to appeal under Section 14A of SC/ST (POA) Act and provisions of sub-section (1) reads as under:- "(1) Notwithstanding anything contained in the Code of Criminal Procedure,1973, an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law." 6. It indicated that whenever an appeal is preferred against any order which is not an interlocutory order, the appellate Court is empowered to decide the same on facts and also on law, which was inserted in view of the fact to provide justice wherever it is required. In view of aforesaid provisions, the scope of appeal is quite wide and same cannot be interpreted in a narrow manner. 7. Herein the matter was registered on written complaint of respondent No.2 and in complaint itself, date and time was not mentioned though in her statement under Section 161 Cr.P.C., the date and time was explained. A cross FIR No. 137/2018 is also registered by Pramila w/o Pokarmal though same has no bearing on present appeal. Thereafter, she was examined under Section 164 Cr.P.C. wherein also date was not named though date of incident was disclosed as "Last Saturday". Thus matter was investigated by an Officer of Deputy Superintendent Rank and after investigation, involvement of two accused were found but not the present appellant. The reasons as indicated in charge-sheet clearly stated that appellant No.1 was on duty at 835 Fd wksp coy eme 835. A certificate to this effect issued by Commandant Officer is also annexed with movement order of appellant No.1. The reasons as indicated in charge-sheet clearly stated that appellant No.1 was on duty at 835 Fd wksp coy eme 835. A certificate to this effect issued by Commandant Officer is also annexed with movement order of appellant No.1. At the time of order, this fact was brought to the notice of learned trial Court wherein it was specifically pleaded by accused that on false fact, the complainant had registered this report but learned trial Court noticing the fact that Investigating Officer has found that at the time of incident, appellant No.1 was on duty and to support the same a certificate was obtained but learned trial Court leaving it undecided for evidence during trial proceeded to take cognisance. The question is who can be brought in the ambit of trial for that purpose. A prima facie case is required to be ascertained by learned trial Court. Herein, when a doubt is created then unless suspicion is so strong, a cognizance order cannot be passed, therefore, learned trial Court had proceeded against the material available on record and just ignored without assigning any reason. Herein, the involvement of Pokar Mal was doubtful and learned trial Court had committed a serious illegality while proceeding to take cognizance against appellant No.1. 8. Now the question is involvement of appellant No.2. The fact and the statement of complainant and her husband clearly stated that firstly it was Pokar Mal and then three other accused persons came on crime scene but in her statement under Section 164 Cr.P.C., the act of Ramdhan was explained in parallel of Pokar Mal. Though no specific averment is made regarding specific act of Ramdhan. Again document like medical prescription and a copy of bus ticket is also submitted to justify that on the date of incident, appellant No.2 was in Jaipur. The Investigating Officer found the claim of appellant No.2 to be true and he didn't charge appellant No.2 with alleged offence, therefore, again it was duty of learned trial court to ensure that there exist a proper evidence or grave suspicion to consider the involvement of appellant No.2. Herein, the reasons again are same as that in case of appellant No.1 that involvement will be considered after evidence. 9. Herein, the reasons again are same as that in case of appellant No.1 that involvement will be considered after evidence. 9. Learned trial court had failed to appreciate the fact that after taking cognisance under Section 193 Cr.P.C., the process for consideration for innocence of any individual is stage of charge provided under Sections 227 and 228 Cr.P.C. but looking to principles for framing of charge, the process of trial as provided under Chapter XVIII of Cr.P.C. is required to be adopted and again a lengthy process. Wherever there is a doubt as regard to involvement of any individual is concerned and the investigating agency has raised serious doubt on involvement or also submitted certain supportive documents in favour of such evidence, then obviously learned trial court is required to opine on such documents or evidence so collected by investigating agency. Herein learned trial court failed to supplement the reasons at the time of taking cognisance, therefore the order dated 18.05.2019 passed by learned Special Judge, SC/ST (POA) Act Cases, Jhunjhunu without any substantive material on record is liable to be set aside. 10. Hence, the appeal is allowed and order dated 18.05.2019 in Criminal Case No. 117/2018, arising out of FIR No. 136/2018 registered at P.S. Gudha Gorji is hereby set aside. The appellants stands discharged. 11. Misc. Application, if any, stands disposed of.