MAHESH LUDHIYANI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned counsel for the parties and perused the papers made available to me on record.

(2.) This is an application for bail under Sec. 439 Criminal Procedure Code. The allegations against the accused petitioner are that the accused petitioner was in jail in some other case and he committed sodomy on one Suresh Yadav, the complaint about which was filed by one Shri Veer Kumar, Advocate on 15th June, 1993 where-in he alleged that it was on the night intervening 11th and 12th June, 1993 as also in between 12th and 13th June, certain under trial prisoners had committed sodomy on Suresh Yadav. It was alleged that under certain influence, the episode was sought to be hushed-up and the authorities were pressurising the victim Suresh for not pursuing the complaint. This complaint was filed by Shri Veer Kumar, Advocate in the Court of learned Addl. M.J.M. No. 5, Ajmer who though having no jurisdiction entertained it and first mention that it may be placed at 4.30 p.m. as it is essential to examine the Complainant. Thereafter realising that he consist proceed he ordered that the case is of the jurisdiction of Addl. M.J.M. No. 1, hence, he cannot record the statement of the Complainant. Instead of sending the case to the court of CJM, he observed that the matter is of great urgency therefore, Chief Judl. Magistrates order may be obtained for taking further proceedings. On some other application some order was passed by the learned C.J.M. Ajmer being order No. 43 dated 16th June, 1993 whereby the case was sent to the Court of learned Addl. M.J.M. No. 5 who stated that he has received the file on transfer hence, the case be registered. He has stated that he has received a complaint with the medical report which should be kept in the double lock. He has also mentioned in the order-sheet that he has recorded the statement of the Complainant under Sec. 200 Code Criminal Procedure and thereafter kept the file for an enquiry under Sec. 202 Criminal Procedure Code.

(3.) I don't have to examine the legal position in this case at this stage as to whether the learned Magistrate, could examine Suresh Yadav under Sec. 200 Code Criminal Procedure as a Complainant or not, as the complaint had admittedly been filed not by him but by Shri Veer Kumar, Advocate, in person. It could be a matter of serious consideration that if the learned Magistrate have taken the application given by Shri Veer Kumar, Advocate, as an information as to whether, he having entertained same, could proceed with the case or should have resorted the provisions of Sec. 191 Code Criminal Procedure therefore, the controversy of application of Sec. 191 and Sec. 200 Code Criminal Procedure may be considered in several proceedings but suffice it to say that at this stage on the basis of various affidavits, applications and the medical report produced before me, I have no hesitation in accepting this application for bail.