Rajasthan High Court - Jaipur
Vimala Devi And 4 Ors. vs State Of Rajasthan on 5 June, 1987
Equivalent citations: 1987(2)WLN373
JUDGMENT
Navin Chandra Sharma, V.J.
1. Heard Mr. Choudhary.
2. Jugal Kishore had lodged a FIR on 28-1-1986 alleging that While he was sleeping in his house at about 11-12 p.m., accused Hem Raj and others entered his house and started breaking open the door. It was stated that accused Ganpat was armed with knife and others were armed with lathies. It was also stated that the ladies were also there and they were empty handed. On this report, the police, after investigation, filed challan against eight persons. On the day when the matter came before the Judicial Magistrate, Pipar i.e. 1-5-1986, the Assistant Public Prosecutor filed an application before the Magistrate for taking cognizance against ladies petitioners. The Judicial Magistrate took cognizance on that very day and bailable warrants were issued against the petitioners. Petitioners filed Criminal Revision No. 329/86, which was dismissed by the Addl. Sessions Judge No. 1, Jodhpur, on 3-4-1987. Hence the petitioners have made this application before this court under Section 482 Cr. P.C.
3. The learned Counsel for the petitioners has argued that both courts below have ignored the provisions contained in Section 319 Cr. P.C. and Section 3 of the Evidence Act. Reliance has been placed on a Bench decision of this Court in Sheoram Singh v. State of Rajasthan 1982 Cr. LR (Raj.) 637 and a decision of a learned Single Judge of this Court in Toga v. State of Rajasthan reported in 1984 RLW 56. I had an occasion to deal with a similar matter in Udai Singh and Ors. v. State of Rajasthan 1987(2) WLN 245. In that case I had pointed out that the decision in Sheoram Singh v. State of Rajasthan 1982 RLW 550 cannot be read as an authority with respect to the powers of the Judicial Magistrate taking cognizance of offence and finding that there was sufficient ground for proceeding to issue process for procuring the attendance of an accused under Section 204 of the Code. Their Lordships in Sheoram Singh's case themselves in para 24 of the reported judgment at page 559 of 1982 RLR stated that they had got no hesitation in holding as proposition of law that two stages of Section 190 Cr. P.C. and Section 319 Cr. P.C. are patently distinct, different, distinguishable and they have got their separate occupied fields which no where overlaps each other. It was, thus, made clear by their Lordships in Sheoram's case that the stage of taking cognizance under Section 190 Cr. P.C. at the stage of refusal or acceptance of the police report under Section 173 Cr. P.C. and summoning an accused under Section 319 Cr. P.C. are distinct stages In Sheoram Singh's case the case was for trial before the Sessions Court and was not before the Judicial Magistrate for taking cognizance of the offence or issuing process against offender. The decision in Sheoram Singh's case, therefore, cannot be made the basis for holding that the Judicial Magistrate had no jurisdiction to issue process against Udai Singh if he was satisfied that there was sufficient ground for proceeding against all the persons. The observation quoted by learned Single Judge of this Court in the case of Bagh Singh v. State of Rajasthan (19(sic)5 RLW 428 at the foot of the para 7 of the reported judgment from Sheoram Singh's case should not be read divorced from the context in which the observations were made by their Lordships in Sheoram Singh's case. I am not unmindful of the fact that they are decisions of this Court, for instance in the case of Hukma Ram v. State of Rajasthan 1982 RLW 300 which had followed a Bench decision in Sheoram Singh's case, but it is clear that in Hukma Ram's case also the Assistant Public Prosecutor had moved an application to the Sessions Judge at the stage when the case was for Sessions trial. Before the Division Bench in Sheoram Singh's case, reliance was placed on the decision in Lumba Ram v. State 1956 RLW 349 where in it was held that it was possible for a Magistrate to take cognizance of an offence on a police report even though the police wants him to accept its negative report if that report contains facts constituting offence and that it was not necessary for the Magistrate to record evidence before accepting the police report. He could have applied his mind to the report and if he found that any offence could be constituted on the basis of the facts mentioned therein, he could take cognizance of the offence. This decision was not overruled in Sheoram Singh's case but on the other hand, was held to be correct. It was distinguished on the ground that when the case had come to the Court of Sessions, power under Section 319 of the Code could only be invoked. The decisions in Ajayab Singh v. State of Rajasthan 1978 RLW 9 and Harji Ram and Ors. v. State of Rajasthan 1979 Cr. LR (Raj.) 248) which were overruled by Sheoram Singh's case also related to the cases where the matter was before the Sessions Court after commitment by the Magistrate and not before the Magistrate. The correct decision, in my humble view is that which was given by his Lordship K.S. Sidhu, J. in Chouthmal v. State of Rajasthan 1982 RLW 265. It was not brought to the notice of the learned single Judge in the case of Bagh Singh v. State of Rajasthan (!985 RLW 428). The view of his Lordship K.S. Sindhu, J. in Chouthmal's case (supra) finds its basis in the decision of their Lordships of the Supreme Court in Raghubans Dube v. State of Bihar .
4. Thus, it is quite clear that the Judicial Magistrate, Pipar, was perfectly competent to take cognizance against the petitioners.
5. This petition has no force in it and it is hereby dismissed.