JOGINDER SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS miscellaneous petition is directed against the order dated August 29,1988, passed by the Munsif and Judicial Magistrate, First Class, Ratangarh, framing charge against the petitioner.

(2.) THE petitioner was the Station House Officer posted at Police. Station, Ratangarh, in the year 1983 -84. While he was posted as the Station House Officer, Police Station, Ratangarh, he investigated certain cases and after completion of the investigation, presented the challan in the Court of the Additional Chief Judicial Magistral, Ratangarh, against the accused. The petitioner was cited as a witness in the charges sheet. These were pending for recording the evidence of the petitioner as well as the other witnesses on January 30,1984, and the petitioner was bound -down on the earlier date by the learned Magistrate to appear for giving evidence on January 30,1984. As the petitioner did not appear on January 30, 1984, the learned Additional Chief Judicial Magistrate, therefore, by his order dated January 30, 1984, ordered for summoning the petitioner by issuing boilable warrants in the sum of Rs. 200/ - and also ordered for the issuance of notice Under Section 350, Cr.P.C. The Court, also, directed to issue notice why the complaint Under Section 174, I.P.C. and Section 20 of the Police Act may not be filed and ultimately the learned Additional Chief Judicial Magistrate, on November 26, 1984, filed a complaint against the petitioner Under Section 174, I.P.C. and Section 29 of the Police Act in the Court of the Munsif and Judicial Magistrate, Ratangarh. On this complaint, on January 17,1985, the Court took cognizance and issued process. In pursuance to the summons issued to the petitioner, he appeared in the Court on various dates starting from November 20,1985, but the case could not be taken -up, on these dates and ultimately on August 29,1988, the learned Judicial Magistrate framed the charges against the petitioner Under Section 174, I.P.C. and Section 29 of the Police Act. It is against this order, framing the charge that the present miscellaneous petition has been filed.

(3.) IT is contended on behalf of the petitioner that no case for framing the charges Under Section 174, I.P.C. or Section 29 of the Police Act has been made out from the evidence produced by the prosecution and the facts emerging from the complaint, filed by the learned Munsif and Judicial Magistrate, docs not constitute the offence for which the accused -petitioner has been charged -with. He further submits that there is a provision in the Code of Criminal Procedure, i.e., Section 350, which provides a summary procedure for punishment for non -attendance of a witness in obedience of a summon and the case of the accused is covered by Section 350 Cr.P.C. and not Under Section 174, I.P.C. As Section 350 Cr.P.C. is the latter provision than that of Section 174, I.P.C. and both the provisions are enacted by the Parliament, therefore, the latter provision will prevail. The counsel for the petitioner has, also, submitted that the petitioner was in the government service at that time, but now he is sixty years of age and has retired from the government service, and the offence being of trivial nature, the proceedings should, therefore, be quashed. The learned public Prosecutor, on the other hand, submitted that though the provisions of Section 350 Cr.P.C. are the latter provisions but merely on this ground, it cannot be said that the petitioner cannot be prosecuted Under Section 174, I.P.C. According to him, if the same act or omission constitutes an offence under two different laws then the accused can be tried under either of the laws. In support of his contention, he has placed reliance over Section 26 of the General Clauses Act.