VISHNU DUTT Vs. GOVIND DAS

JUDGEMENT

(1.) This miscellaneous petition is directed against the order dated 20-12-93, passed by the Additional Chief Judicial Magistrate No. 4, Jodhpur, by which the learned Magistrate refused to accept the Final Report submitted by the police and took cognizance against the accused-petitioners for the offences under Sections 448, 427 and 341 I.P.C.

(2.) The order passed by the learned Additional Chief Judicial Magistrate has been challenged by the petitioners on the grounds that (i) the order passed by the learned Magistrate taking cognizance is not a speaking order; (ii) the learned Magistrate has not considered the Final Report submitted by the investigating agency and has not given any detailed reasons why he did not agree with the Final Report submitted by the investigating agency; and (iii) before caking the cognizance and not accepting the Final Report, the petitioners were not given any opportunity of hearing. It has been contended by the learned counsel for the petitioners that the order issuing the process should be a speaking order so that the accused may know what materials have been considered against them by the learned Magistrate while taking the cognizance. It is, also, contended by the learned counsel for the petitioners that the learned Magistrate, while passing the order taking cognizance against the petitioners, has not considered the Final Report submitted by the investigating agency and has not given any reasons and, therefore, the order passed by the learned Magistrate stands vitiated. In support of its contention learned counsel for the petitioners has placed reliance over : Basuda v. State, (1989 Raj Cri 271) and Hasti Mal v. State of Rajasthan, 1994 Cri LJ (NOC) 145 (Raj). His further contention is that before taking the cognizance it is necessary that the accused should be given an opportunity of hearing and as the cognizance has been taken against the petitioners without giving them any opportunity of hearing hence the order passed by the learned Magistrate deserves to be quashed and set-aside. In support of this contention, learned counsel for the petitioners has placed reliance over : Hardeo Singh Sandhu v. State of Rajasthan, (1986 (1) WLN 9) and Jagdish v. State of Rajasthan, (1988 Cri LR (Raj) 128). The learned Public Prosecutor, on the other hand, has supported the order passed by the Court below and contended that the learned Magistrate, while taking the cognizance, has considered the relevant material available on record and has rightly taking the cognizance against the accused-petitioners. According to him, at the time of taking the cognizance, no detail-discussion of the evidence is necessary. In support of its contention, the learned Public Prosecutor has placed reliance over : Bhanwar Lal v. State of Rajasthan (1985 Cri LR (Raj) 512). He also, submitted that the accused has no right of hearing before the cognizance is taken. In support of his contention, the learned Public Prosecutor has placed reliance over : Mahesh Chandra v. State of Rajasthan (AIR 1986 Raj 58) (FB), Chandra Deo Singh v. Prakash Chand Bose (AIR 1963 SC 1430).

(3.) I have considered the submissions made by the learned counsel for the parties.