BHOWAL SINGH Vs. STATE AND ANR.

JUDGEMENT

(1.) This petition under Sec. 397/401 read with Sec. 482 Cr.PC. is directed against the order dated 22nd Aug., 1995 whereby the learned Additional Sessions Judge, Deeg, set aside the order of the Civil Judge (Junior Dvn.) cum-Judicial Magistrate 1st Class, Nagar, District Bharatpur, dated Oct. 7, 1994. By his said order, the learned Judicial Magistrate had taken cognizance of the offence under Sec. 147, 148, 336, 341, 342/149, 542, 323, 326/149 Penal Code against the non- petitioners; by his order, the learned Additional Sessions Judge has cancelled the order of the learned Magistrate taking cognizance of the aforementioned offences against the petitioner. The fact relevant and material to dispose of the present petition are these : On March 6, 1993, the petitioner Shri Bhowal Singh lodged a First Information Report with Police Station Nagar, District Bharatpur wherein it was alleged that when he and other members of his family were sleeping in their house, the non-petitioners duly armed with fire arms, lathies etc., entered into their house, looted their properties and be-laboured them It was alleged that injuries with fire arms were caused to Smt. Shanti and Shibbi. The police registered a case having crime No. 55/93 and on the basis of information given by Shri Bhowal Singh investigated the case. The police, however, arrived at the conclusion that the non-petitioners had also lodged a first information regarding similar incident having taken place in the morning and in such incident one life was lost and several persons had sustained injuries On the basis of such report lodged by the non-petitioners, Crime No. 54/93 had been registered at the police Station. In the opinion of the investigating agency, Bhowal Singh had simply lodged the F.I.R. in an effort to make out a case in defence and that the injuries alleged to have been caused to Smt. Shanti and Shibbi could be self-inflicted. The police accordingly submitted a final report under Sec. 169 Cr.PC. in the case. Before accepting the final report, the learned Magistrate issued show cause notice to Shri Bhowal Singh whereupon, he filed a protest petition. The learned Magistrate rejected the protest petition and accepted the final report on 16.8 1993. Aggrieved by the aforesaid order of the learned Magistrate, the petitioner approached the court of Sessions Judge in a Revision Petition and by his order dated 6.9.1994, the learned Additional Sessions Judge No. 2, Bharatpur set-aside the order of the Magistrate dated 16.8.93 and directed him to hear the parties again and pass appropriate orders afresh according to law. In compliance of the orders of the learned Additional Sessions Judge dated 6.9.1994, the learned Magistrate heard the parties and vide his order dated Oct. 7, 94 took cognizance of the offences punishable under Sections 147, 148, 323, 326/149, 336, 341 and 342/149 Penal Code and summoned the non-petitioners and issued process against the non-petitioners. This order of the learned Magistrate dated Oct. 7, 1994 was challenged by the non- petitioners before the learned Additional Sessions Judge, Deeg who, by his impugned order, set-aside the order of the learned Magistrate and cancelled the cognizance taken by him against the accused petitioners. Hence, this petition before this Court.

(2.) Learned counsel for the petitioner urged that at the stage of taking cognizance of an offence, the evidence produced by the complainant before the police is not to be examined in such a way as to give benefit of doubt to the prospective accused and record verdict of not guilty in his favour. If the evidence brought on the record of the Court, discloses prima facie commission of an offence, then cognizance is required to be taken and at that stage of the proceedings, evaluation or appreciation of evidence is neither required nor expected to be done. It was submitted that in the present case there was prima facie evidence in the statement of several witnesses, including two injured ladies, who had clearly stated that he non-petitioners had entered into their residential house, looted their properties and used criminal force against them It was submitted that the evidence so produced by the petitioner by that stage should not have been discarded simply on the ground that the witnesses were participants or interested or relatives of the complainant or the absence of any signs at the place of occurrence created some doubt in the truthfulness of the version advanced by the complainant. Mr. Azad Ahmed appearing on behalf of the non-petitioners led me through the order passed by the learned Sessions Judge and highlighted the fact that the incident in non- petitioners case had already been reported to the police and F.I.R. No. 54/93 had been registered thereupon. In that incident one person had lost his life ana 6 persons had sustained injuries at the hands of the complainant party. The petitioner Shri Bhowal Singh simply lodged a false report with the police in order to save himself and his party and for that purpose certain injuries were shown to have been caused on the persons of two ladies. The learned counsel further submitted that the case advanced by the petitioner was, on the face of it, false and therefore, the learned Sessions Judge was justified in cancelling the cognizance taken by the learned Magistrate against the non-petitioners. In support of his arguments, the learned counsel relied upon the case reported in (1997) 1 SCC/p 57, Vindeshwari Prasad Singh Vs. Kali Singh , which was followed by this Court in the case of Dadamchand Vs. State of Rajasthan RLR 1987(1) p. 106 . In the case of Vindeswari Prasad Singh, the Supreme Court hold that the Magistrate do not possess inherent powers so as to review or recall the orders passed by them. In the case of Dadam Chand (supra), this Court, following the decision of the Supreme Court, had held that the order passed by the Magistrate is a judicial order and the same cannot be recalled or reviewed by the Magistrate. The Court has further held that cognizance taken subsequently by the Magistrate in the absence of protection petition against the accused was without jurisdiction and liable to be quashed in exercise of the powers of this Court under Sec. 482 Cr.PC.

(3.) I have gone through the orders of the Lower Court as also considered over the rival submissions advanced before me. By now, it is well settled law that at the time of taking cognizance of an offence the Magistrate is not required to evaluate or appreciate the evidence put forth by the complainant in a way so as to know the worth and value of such evidence and to approach the case from the angle whether benefit of doubt can be extended to the prospective accused at that stage of the proceedings. The case of State of Haryana Vs. Bhajan Lal, 1992 Supl. (1) SCC 335 was a case in respect of powers of the High Court under Sec. 482 Cr.PC. and wherein the question of taking cognizance of an offence and/or cancellation of the cognizance so taken by the Magistrate was considered. It was pointed out that a Magistrate is not bound by a negative report submitted by the police and if the material on the record of the police discloses the commission of any offence, the Magistrate is bound to take cognizance of such offence. In the context of the inherent powers of this Court under Sec. 482 Cr.PC. the Apex Court further observed that such powers should be sparingly exercised in exceptional cases and the cognizance taken should not accordingly be cancelled at that stage of the proceedings. Propounding principles applicable in such cases the Apex Court held that: