STATE Vs. ROSHAN LAL

JUDGEMENT

(1.) This is a reference made by learned District & Sessions Judge, Bhaderwah, recommending quashment of an order passed by Judicial Magistrate, Gandoh, on 14.02.2004, whereunder the learned Magistrate while considering the matter at threshold stage, discharged the accused.

(2.) It appears that on 14.11.2003, police concerned instituted a case before the Trial Magistrate against one Roshan Lal with allegation that on 13.11.2003 he was found drunk and intoxicated on road side, creating nuisance for the passersby, and sought his trial under Sec. 510 R.P.C. Materials submitted alongwith police report included the medical certificate regarding intoxication of the accused, statements purporting to have been recorded under Sec. 161 Criminal Procedure Code, and the search memo etc., prepared by police during course of investigation. After institution of the case the matter appears to have been posted for 17.11.2003 when accused sought time for engaging a counsel, and on the following date i.e. 14.02.2004, the learned Magistrate, while observing that in given facts and circumstances of the case, the accused may not be ultimately convicted, discharged him. Aggrieved thereby, the State impugned the Magisterial order aforesaid through a revision petition before the learned District & Sessions Judge, Bhaderwah, who, while opining that Magistrate had not acted properly, made the reference as aforesaid, which is contested by respondent on the contention that in given circumstances of the case the impugned order was well placed.

(3.) I have heard learned counsel, gone through the record and considered the matter. Offence under Sec. 510 of R.P.C., being punishable with imprisonment for two years and fine of Rs.100.00, is a summon's case, procedure for trial whereof is contained in Chapter-XX of the Criminal Procedure Code, which comprises of Sections 241 to 250. Under Sec. 242, when accused is brought before the Magistrate, the particulars of offence alleged against him are required to be stated to the accused, asking him to show-cause as to why he may not be convicted. On admission he may be so convicted, and in case he does not admit the accusations, the Magistrate is required to proceed to hear the complainant and the accused after recording their respective evidence, and acquit or convict him accordingly. On conclusion of trial the accused may however be convicted of some other offence, proved against him. Thus, the first step after accused is brought before the Magistrate is to confront him with the substance of accusations and record his plea thereupon. Instantly that, does not appear to have been done, and that is precisely where the Magistrate went wrong and totally misdirected himself. Instead of proceeding in accordance with the procedure as aforesaid, he recorded the impugned order in total violation thereof, perhaps influenced by the ordinary nature of the offence involved, while doing so he totally ignored the police report and materials submitted therewith; and in contrast, simply imagined reasons to let off the accused, without allowing the allegations to be proved. On one hand, he disbelieved the police by saying that had the accused been found in the public place, the list of prosecution witnesses would comprise of a lot of private witnesses; and on the other, observed that the occurrence has taken place more than 2 kilometers away from Gandoh town which was thinly populated where people did not usually assemble. Both the so called "reasons", extraneous to the record as they are, are unfounded to the point of absurdity, and self contradictory also, rendering the impugned order quite bad.