SAMANDAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner is aggrieved by the order dated 27.07.2009 passed by Special Judge, Dacoity Affected Area, Bharatpur, whereby the learned Judge has quashed the order dated 04.06.2007 passed by the Judicial Magistrate No. 2, Bharatpur, wherein the learned Magistrate has taken cognizance against respondent No. 2 Rajendra Dagur for offences under Sections 323 and 327 IPC, and the learned Judge has remanded the case back to the learned Magistrate. Briefly, the facts of the case are that on 08.05.2007, the complainant petitioner, Samandar Singh, submitted a complaint before the learned Magistrate, wherein he claimed that for the year 2007-2008 he was given contract by the Municipal Council, Bharatpur for the parking lot near Heeradas Khadi Samiti. He further claimed that on 07.05.2007, around 7 O' Clock in the evening, the respondent No. 2, a police personnel parked his jeep and asked the petitioner complainant as to how much money he had with him. The petitioner informed him that he had about Rs. 10,000/-. The respondent No. 2 demanded the money to be handed over to him. The respondent No. 2 also told him to recover Rs. 200/- from each car so as to cover up the loss of Rs. 10,000/- The complainant petitioner informed him that as he is permitted only to charge for parking of the vehicle, in case the CO., or the officers of the Municipal Council would come to know about his over-charging, they would cancel his contract. When the respondent No. 2 tried to snatch the said amount, the petitioner raised an alarm. The statements of the petitioner and of his three witnesses, namely Chandra Prakash, Girjakant Awasthi and Vijay Singh were recorded under Section 200 and 202 Cr.P.C. respectively. After recording their statements, vide order dated 04.06.2007, the learned Magistrate took cognizance against the respondent No. 2 for the offences under Sections 323,; 327 IPC and issued bailable warrants against the respondent No. 2. Since the respondent No. 2 was aggrieved by the said order, he filed a revision petition before the learned Judge. Vide order dated 27.07.2009, the learned Judge has accepted the revision petition, quashed the order dated 04.06.2007, and remanded the case back to the learned Magistrate directing that an enquiry be held through a competent person and proper order be passed after permitting the respondent No. 2 to submit his documents and after considering the documents so submitted by the respondent No. 2. Hence, this petition before this Court.

(2.) Mr. Anurag Sharma, the learned counsel for the petitioner, has vehemently contended that the learned Judge could not have controlled the discretion vested in the learned Magistrate under Section 202 Cr.P.C. Secondly, the learned Judge could have directed a further enquiry only under Section 398 Cr.P.C. However, the said section deals with a case when a complaint is dismissed under Section 203, or when the person accused of an offence is discharged. However, in the present case, the respondent No. 2 was not discharged. In fact, cognizance against him was taken. Therefore, even under Section 303, Cr.P.C., the learned Judge could not have directed further enquiry to be held.

(3.) On the other hand, Mr. Biri Singh Sinsinwar, Sr. Advocate, assisted by Mr. Mukesh Saini, has vehemently contended that prior to taking cognizance, the learned Magistrate was duty bound to hold an enquiry. For, the complainant had given two different dates for the occurrence and had made allegations against a Public Officer. Moreover, the cognizance could not have been taken as there was no sanction order available. Thus, the requirement of Section 197 Cr.P.C. had not been fulfilled. Lastly, that the respondent No. 2 had ample evidence in his favour to show that he was being roped in a false case. Therefore, the learned Judge was justified in setting aside the cognizance order and in directing the learned Magistrate to hold an inquiry and to consider the documents available with respondent No. 2. Thus, the learned counsel has supported the impugned order.