Rajasthan High Court - Jaipur
B.G. Singh And Anr. vs State Of Rajasthan And Anr. on 18 November, 1997
Equivalent citations: 1998(2)WLC671, 1998(1)WLN542
JUDGMENT Amaresh ku. Singh, J.
1. Heard the learned Counsel for the petitioners and the learned Public Prosecutor and perused the original record of the criminal case No. 285/93 State v. B.G. Singh and Ors.
2. This petition under Section 482 Cr. P.C. is directed against the order dated 29.6.1993 passed by the learned Additional Chief Judicial Magistrate, Suratgarh, where by he took cognizance of the offences under Sections 436 and 380 I.P.C. against the petitioner B.G. Singh and R.S. Verma as well as against Prithvi Jakhad and Gulab Chand on the basis of the Final report submitted under Section 173 Cr. P.C.
3. In short the allegation are that in front of Central State Farm there were shops constructed by the Farm and near those shops the complainant Milakh Raj set up cabins in which he was running shop of cycle repair. Milakh Raj obtained land from Municipal Board on payment of licence fee but it appears from the record that for the last few years before the alleged occurrence the Municipal Board refused to accept the licence fee. Apprehending demolition of cabin Milakh Raj filed a writ petition in which on 12.2.1991 the learned Single Judge without deciding the question whether Milakh Raj was or was not a licensee directed the Municipal Board to evict Milakh Raj who was petitioner in that petition in accordance with law and not by force. It was further directed by the learned Single Judge that it will be open for the Municipal Board to evict the petitioner after complying with due process of law and they would not evict the petitioner without following due process of law.
4. According to the allegations made by Milakh Raj in his complaint dated 23.11.1991, on 30.8.1991, when he went to Bhawansar leaving the servant Inderjeet at cycle repair shop, attempt was made to forcibly evict him. It was stated in the complaint that at about 6.00 P.M. when he (Milakh Raj) returned to Suratgarh and when he just reached near bus stand he saw that in front of his shop a crowd had collected. When he went near the shop he found that B.G. Singh, Prithvi Singh and 25-30 persons were demolishing his shop and the goods were being removed from the shop to the truck No. RSK 8060 and to two tractors. It was further alleged in the complaint that the complainant drew the attention of B.G. Singh to the order passed by the High Court but no need was paid to it. During the incident telephone and electricity connection were cut and demolition of the shop continued in spite of the protest and this conduct on the part of the persons, who were involved in the demolition of the shop, attracted the public. It was also alleged in the complaint that on account of fear B.G. Singh asked the persons accompanying him to set fire to the goods which could not be placed in the truck and tractor and one R.S. Verma (Overseer) set fire to those goods. Through his servant the complainant further came to know that B.G. Singh and other persons had gone to the shop at 4.30 P.M. and B.G. Singh had forcibly dragged Inderjeet out of the shop by holding his coller and at that time notice was given and goods were taken out of the shop and were thrown out and at that time photographer was called and he took photographs. It was also alleged in the complaint that the persons who were involved in the incident had common object of demolishing the shop and of committing theft and that they included Dinesh Chandra Security Officer, C.S.F, R.S.Raghuvansh Administrative Officer of Suratgarh, Gulab Chand Bansal belonging to Nagar Palika, Suratgarh, Rama Kant Sanitary Inspector, Nasib Chand Officer, R.S. Verma, Overseer, it was further stated in the complaint that when the complainant reached the Police Station to lodge the first information report the Station House Officer of the Police Station refused to register the case. With the complaint a list was also given which contained the description of as many as 18 items which had been removed from the shop of the complainant. The complaint submitted by Milakh Raj was forwarded to Station House Officer of the Police Station, Suratgarh under Section 156(3) Cr PC for investigation.
5. After investigation the Police submitted the final report in the Court of learned Additional Chief Judicial Magistrate, Suratgarh and a protest petition was also filed by Milakh Raj the complainant and after hearing arguments of both the parties the learned Additional Chief Judicial Magistrate vide order dated 29.6.1993 took cognizance of the offence under Sections 436 and 380 I.P.C. and issued process against the two petitioner as well as some other accused persons. Feeling aggrieved by the aforesaid order this petition has been filed.
6. I have carefully gone through the statements recorded under Section 161 Cr. P.C. the statement of Milakh Raj, Inderjeet, Chandra Prakash and Subhash Chandra are material for the disposal of the petition. These persons claim to have personal knowledge about the incident.
7. It has come in the statement of these witnesses that the Sub-Divisional Magistrate was also present at the time of incident. And when the Sub-Divisional Magistrate was apprised about the fact that Milakh Raj did not vacate the land inspite of the service of notice the Sub-Divisional Magistrate directed that he should be evicted. It has also come in the evidence of these witnesses that fire was set to the items which remained lying at the spot and were not taken away in the truck and two tractors. Obviously a question arises whether fire was set to any enclosure, building or dwelling house or to the useless portion of the goods left in front of the shop after the removal of the articles seized by the officers of the Municipal Department. I do not intend to discuss the evidence collected by the Police in detail at this stage. Suffice it to say that before issuing process under Section 204 Cr. P.C. against the petitioners it was necessary for the learned Additional Chief Judicial Magistrate to have judicially applied his mind under Section 204 Cr. P.C. to find whether there were or were not sufficient grounds to proceed against the petitioners. The learned Additional Chief Judicial Magistrate has not given any reasons in his order dated 28.6.1993 to show that he has judicially considered the material on record for the purpose of taking decision under Section 204 Cr. P.C.
8. The order dated 28.6.1993 is in two parts the first part relates to the taking of the cognizance under Section 190(1)(b) Cr. P.C. on the basis of the final report. Taking cognizance has not been defined in the Criminal Procedure Code anywhere as early as in King Emperor v. Soarindra Mohan (37 Calcutta 412) A Division Bench of the Calcutta High Court observed "taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as the Magistrate as such applies his mind to the suspected commission of an offence. This definition of taking cognizance (under Section 190 Cr. PC.) has been approved by the Hon'ble Supreme Court and Hon'ble High Courts in several cases. As early as in AIR 1951 in R.R Chari v. State of U.P. Page 207 above mentioned definition of taking cognizance was approved by the Hon'ble Apex Court. Among the later decisions of the Hon'ble Apex Court, the ruling of the Hon'ble Supreme Court given in Mowu v. Special Jail Nowgong Assam and Ors. U.J.[SC] 1971 Page 111 SC 1971 Page 207 may be cited. Since taking cognizance is automatic and does not require any action or action of any kind if the facts brought to the notice of the Magistrate do constitute offence it would not be necessary for the Magistrate to give reasons for taking cognizance. Reasons are necessary for those orders which require some deliberate act. Spontaneous acts which occur in ordinary course of nature do not require reasons to be given. The order dated 28.6.1993 passed by the learned Additional Chief Judicial Magistrate, so far as act of taking of cognizance on the basis of the allegations contained in the complaint which were sent for investigation under Section 156(3) Cr. P.C. are concerned, the order cannot be said to be without authority of law or purverse in any manner. That portion of the order cannot be quashed under Section 482 Cr. P.C. The later portion of the order deals with the issue of process against the accused persons. This portion of the order is obviously under Section 204 Cr. P.C. Before proceeding against any accused person under Section 204 Cr. P.C. it is necessary for the Magistrate to apply judicial mind to the evidence placed before him to ascertain whether there are or there are no sufficient grounds to proceed. Passing of an order under Section 204 Cr. P.C. requires deliberate Judicial consideration by the Magistrate to the offence brought to the notice. Therefore, it is necessary that in cases of this kind, it should appear from the order passed by the Magistrate that he has in fact applied his judicial mind to the question of issue of process under Section 204 Cr. P.C. In the instant case the learned Additional Chief Judicial Magistrate does not appear to have exercised his judicial mind under Section 204 Cr. P.C. for the purpose of deciding whether process should be issued or not. Therefore, the later portion of the order deserves to be quashed and set aside.
9. For reasons mentioned above the petition is partly allowed. The order of taking cognizance is maintained and the order of issuing process under Section 204 Cr. P.C. is hereby quashed and set aside and the case is remanded to the learned Additional Chief Judicial Magistrate with a direction that he will judicially consider whether there are or there are no sufficient grounds to proceed against the petitioners under Section 204 Cr. P.C. for the offence of which he has take cognizance. Needless to say that the proceedings after taking cognizance and before issuing process under Section 204 Cr. P.C. are in the nature of inquiry and if the learned Additional Chief Judicial Magistrate consider it necessary to examine any person or to direct the production of any document before him, he will have the right to do so under Section 165 of the Evidence Act as well as under Section 311 Cr. P.C.
10. The petition is disposed of accordingly. A copy of this order along with the record of the lower Court be sent to the learned Additional Chief judicial Magistrate. Suratgarh for information and necessary action.