Rajasthan High Court - Jaipur
Mool Chand Soyal vs State on 15 July, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH [1] S.B. CRIMINAL MISC. PETITION NO.216/2003 Ashok Kumar Saxena Versus State of Raj. [2] S.B. CRIMINAL MISC. PETITION NO.123/2003 Mool Chand Soyal Versus State of Raj. DATE OF ORDER : 15/07/2011 HON'BLE MR.JUSTICE S.S.KOTHARI Mr. Nitin Jain ] for petitioners
Mr. V.R. Bajwa ] Mr. Laxman Meena, P.P., for State *** REPORTABLE As both the above petitions are directed against the order dated 21.12.2002 passed in case initiated on FIR No.193/92 and FR No.9/93 Police Station Uniyara, District Tonk, for quashing the order of cognizance in respect of offences under sections 365, 364 and 120 B I.P.C. against the petitioners, they are being decided by this common order.
Briefly stated, the facts are that Prahlad Gupta lodged a verbal report at Police Station Uniyara on 19.09.1992 alleging that his elder brother, Rakesh Kumar, came to the Uniyara bus stand on 04.09.1992. It was also alleged that Rakesh Kumar consumed liquor with Mool Chand and Ashok Kumar Saxena and they went from there between 9.00 P.M. and 10.00 P.M. to Mandawara village on a motorcycle to visit prostitutes. On reaching village Mandawara, they consumed another bottle of liquor, had sex with three prostitutes, and spent the night there. Ashok Kumar Saxena and Mool Chand Soyal returned back on the motorcycle but nothing is known about Rakesh Kumar and he is missing since then. The aforesaid report was recorded by the police in the General Diary and an enquiry was conducted. Subsequently, FIR No.193/92 for offence under section 365 IPC was registered on 13.10.92. The Police conducted investigations and many different investigating officers reached the conclusion that there is no evidence against the petitioners in respect of the alleged offences. Ultimately, FR No.9/93 was submitted in the court of Civil Judge cum Additional Chief Judicial Magistrate, Uniyara on 31.03.93. The complainant appeared in the court and submitted a protest petition on 1.6.2001. The case was fixed for recording the evidence of the complainant but no evidence could be recorded. After perusal of the record, the impugned order for taking cognizance of the offences under sections 364, 365 and 120 B IPC against the petitioners was passed.
I have heard the learned counsel for the petitioners at length.
It has been submitted on behalf of the petitioners that after submission of protest petition by the complainant, it was mandatory for the learned Magistrate to comply with the provisions of Chapter XV Cr.P.C. before passing the impugned order. As the impugned order has been passed without complying with the above provisions of law, it is liable to be set aside. It has also been submitted that there is not an iota of evidence against the petitioners and cognizance cannot be taken unless there is at least some material indicating the guilt of the accused. It was further contended that judicial process should not be an instrument of operation or needless harassment to the accused. Reliance has been placed on Punjab National Bank and Others Vs. Surendra Prasad Sinha, AIR 1992 Supreme Court 1815 ; Dasha Patasahani & others Vs. State of Orissa & another, 1995 (4) Crimes 147; and Harish Chandra Prasad Mani & others Vs. State of Jharkhand and another, J.T. 2007 (3) SC 229.
The Public Prosecutor has strongly opposed the petitions and submitted that the learned Additional Chief Judicial Magistrate was fully justified in taking cognizance having regard to serious allegations.
I have given my anxious consideration to the above submissions made on behalf of the parties and gone through the file of the lower court minutely. I have also gone through the aforesaid citations. A perusal of the file of the lower court shows that FR was chalked by the police on 31.3.1993 and was submitted in the court in April 1993. Notice was issued to the complainant on 27.4.93.The complainant was present in the Court on the five dates fixed by the Court, i.e.,from 20.5.93 to 16.7.93. After this, a request was made by the SHO, Uniyara, on 5.8.93 that DIG ,Jaipur Range, has asked for the final report file. The Court accepted this request and the file was given to the police on 5.8.93. File was received with the same conclusion and report of police on 29.6.99 and the complainant appeared on 30.05.2000. Thereafter, the case was fixed for recording evidence of the complainant for which 24.10.2000, 04.12.2000, 04.01.01, 05.02.01, 5.03.01, 20.04.01, 02.05.01, 01.06.01, 11.06.01, 31.07.01, 04.09.01,30.10.01, 15.12.01, 23.01.02, 19.02.02, 10.05.02, 18.06.02, 26.07.02, 09.09.02 and 01.11.02 were fixed but the complainant failed to produce any evidence. On 1.11.2002, the Court fixed the file for perusal on 12.11.2002, 27.11.2002 and 16.12.2002. On 18.12.2002 the Court directed Dy.SP, Uniyara, to submit a report on the desired points. The statements of the father and brother of Rakesh Kumar were also enclosed. After perusing the report and the record, the impugned order dated 21.12.2002 was passed. The Dy.SP, Uniyara, submitted a report that after 4.9.1992, the date from which Rakesh Kumar is missing, no information has been received about him by his relatives.
From the above facts, it is clear that the Magistrate was very liberal in granting adjournments for producing evidence by the complainant but the opportunities were not availed by him. Ultimately, the Magistrate passed the impugned order without recording any evidence. It has been held in Dasha Patasahani case (Supra) that when a final report is filed by the police and the complainant files a protest petition, the Magistrate has to follow provisions of Chapter XV Cr.P.C. before taking cognizance. In that case the offences alleged were under sections 436 and 427/34 IPC. The offence under section 436 IPC is triable by the Court of Sessions only. In the circumstances, it was held that without following proviso to sub-section (2) of section 202 Cr.P.C. which provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce his witness and examine them on oath. Such provision not having been followed, the order passed by the Magistrate is illegal. In the instant case, the offences alleged are under sections 364, 365 and 120 B IPC. Offence under section 364 is triable exclusively by the Court of Sessions and accordingly offence under section 120 B also becomes exclusively triable by the Court of Sessions. The Magistrate gave several opportunities to the complainant to produce evidence in support of his case but no evidence was produced and the impugned order has been passed without following the provisions of Chapter XV Cr.P.C. Accordingly, the principle laid down in the aforesaid case is fully attracted in this case also and hence, the impugned order is illegal.
The matter may be examined from another angle also. A reading of the impugned order shows that the Magistrate has been swayed away by the facts that the petitioners were employed in Judicial Courts and the allegations made against them are highly derogatory and they got the investigation of the case transferred from one Investigating Officer to another by making requests to the S.P., Tonk. I do not think that getting a case transferred during investigation should lead to any adverse inference against anybody as it is not uncommon both for the complainant and the accused to make a request for transferring the investigation from one Investigating Officer to another Investigating Officer if they feel that the investigation is not being conducted fairly and properly. So far as the employment of the petitioners in Judicial Courts is concerned, no adverse inference should have been drawn against them on that count as the allegations are equally unbecoming for anybody irrespective of the department he is employed in. Article 14 of the Constitution of India guarantees equality before the law or the equal protection of law to all its citizens.
A perusal of the impugned order also shows that cognizance has been taken against the petitioners simply on the ground that Rakesh Kumar was last seen with them. The evidence of last seen is nothing but a circumstance. According to FIR and the statements of witnesses recorded during investigations, the petitioners went with Rakesh Kumar to village Mandawara and thereafter Rakesh Kumar is missing. The Magistrate has observed in the impugned order that no steps were taken by the police for tracing Rakesh Kumar by flashing his photo in different places. A reading of FR shows that the police flashed a photograph of Rakesh Kumar not only in Tonk District, but in other neighboring Districts also, in order to get information about him. Regarding accused Ashok Kumar Saxena, it has come out in the police investigation that he stayed back in Mandawara and did not return with the accused Rakesh Kumar and Mool Chand. The Complainant has also mainly alleged against Mool Chand that Ashok Kumar Saxena and Mool Chand returned together from Mandawara.
Learned Magistrate has made the observation in his Order that Babu Lal Gurjar submitted an application that he did not see Rakesh Kumar in Jaipur, and that he has given the affidavit on the request of Moolchand or the person named as Patwa and this might be true in relation to other witnesses also. But there are statements of Gurubachan Singh and Urmila Devi on record. Gurubachan Singh has said in his statement that in October-November 1992, Rakesh Kumar met him at the Roadways Bus Stand, Jaipur and at the Tempo Bus Stand, Chandpole and greeted him, even offered him tea. Rakesh Kumar also mentioned in conversation that he had been acquitted in the case u/s 302 IPC in which he had been arrested by him (Gurubachan Singh). On being asked, he said that he was now working in Jaipur and did not intend to return to Uniyara. Gurubachan Singh also stated that he knows Rakesh Kumar very well from the time when he was S.H.O.,P.S., at Uniyara where Rakesh Kumar used to run a tea stall at the Uniyara Bus Stand, and he had arrested Rakesh Kumar and kept him in custody in a case under Section 302 IPC. Smt. Urmila Devi has deposed in her statement u/s 161 Cr.P.C. that when she was standing near the Gopalpura Railway Crossing, she had seen Rakesh Kumar moving towards Tonk Road on a scooter either on 30.9.92 or on 1.10.92. She had mentioned this to her husband, and Urmila Devis husband, Prakash Chand, corroborates this fact in his statement. The aforesaid evidence completely wipes out the evidence of last seen. If the evidence of last seen is wiped out, there is not an iota of evidence against the petitioners regarding the alleged offences.
The Complainant has mentioned in his report that in case number 67/89 u/s 147,148, 149, 307, 341, 323, IPC missing Rakesh Kumar, his uncle, Radhey Shyam Gupta and other accused were challaned. Investigation of this case was conducted by the then SHO, Uniyara, Gurubachan Singh, in which these accused persons have been acquitted. The Complainant, Prahlad, and accused of the above case, Radhey Shyam Gupta, contend that the complainants of the above case have conspired with accused Mool Chand and, in pursuance of that, Mool Chand abducted Rakesh Kumar and murdered him. The Police has not implicated the Complainant of the above case as accused in this case. Police investigation reveals that this cannot be true nor have any facts come on record to substantiate this. No other motive has come on record which may indicate commission of this offence by the accused persons.
Learned lower court has mentioned in the impugned order that one unidentified dead body was found in the jurisdiction of Police Station, Shivdaspura, the enquiry of which was abruptly closed without reaching any conclusion. There is no material available in the file to lead us to believe that any such body was found. Moreover, there is no evidence to suggest that such body was of Rakesh Kumar. There is no allegation against accused persons that they had forced Rakesh Kumar into going along with them. It appears from the evidence collected that all three had gone together of their own free will. There is no record on file that Rakesh Kumar has been murdered. It has been alleged that there were injury marks on the body of Mool Chand indicating that Mool Chand and Rakesh Kumar may have come to physical blows. There is no injury report available on file regarding alleged injuries of Mool Chand. As far as family members of Rakesh Kumar are concerned, they have no personal knowledge about his whereabouts. The only evidence available in the police file on this point is the statement made by two accused persons during their interrogation by the police. Such statements are inadmissible as evidence. The incident took place on 4.9.1992 and the FIR was lodged on 19.9.1992. This delay has not been satisfactorily explained.
The Honble Apex Court in the case of Harishchandra Prasad Mani (Supra) after referring to its earlier judgment held that it is true that at the stage of taking cognizance adequacy of evidence will not be seen by the court, but there has to be at least some material implicating the accused and cognizance cannot be taken merely on the basis of suspicion. Mere suspicion without facts and evidence is not sufficient to proceed against the accused persons.
After having gone through the record thoroughly, I am of the view that no possibility of conviction is made out even if the evidence collected by the police is taken in its entirety, and a trial on the basis of such evidence would be a futile exercise.
I am not losing sight of the fact that Rakesh Kumar has been missing since 04.09.1992, i.e., for about 19 years. It is really unfortunate that the whereabouts of a young man are not traceable and the possibilities of his death cannot be ruled out as his brother and other family members have not heard about him during this long period. But this does not justify action against the petitioners in view of the principle of law laid down by the Hon'ble Apex Court in the case of Punjab National Bank (supra) and the Hon'ble Apex Court has observed as under:
It is also salutary to note that the judicial process should not be an instrument of oppression or needless harassment...... Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance..........
For the aforesaid facts and circumstances, the impugned order suffers from legal lacuna and is unjustified as there is not an iota of evidence against the petitioners. As such, the impugned order of cognizance amounts to abuse of the process of court.
Accordingly, the petitions are allowed and the impugned order is set aside.
[S.S.KOTHARI], J.
FRBOHRA216CMP2003.doc