SATISH CHAND SINGHAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner has challenged the order dated 7-3-1998 passed by the Civil judge (Jr. Division) and Judicial Magistrate, kathumar, District Alwar whereby the learned Magistrate has taken cognizance for offence under Section 3 of the Damages to public Property Act, 1984 ('the Act of 1984' for short) and under Section 25 and 25-A of the Indian Telegraph Act, 1885 ('the Act of 1885' for short ).

(2.) THE brief facts of the case are that on 5-11-1997 the complainant, Mr. Vijay Singh solanki, submitted a written report at Police Station, Kherli wherein he claimed that on 3-11-1997, around 1. 15 in the afternoon, satish Chand Singhal the petitioner before this Court, tried to repair the telephone wires of his Telephone No. 20304. In the process of repair, he pulled the telephone wire over the KV-11 wires. In this process, the two wires touched each other. Consequently, there was damage to the wires and damage caused at the Telephone Exchange as 384 numbers went dead. As a result of this incident, the Department has suffered a huge loss. On the basis of the said report a formal FIR, FIR No. 302/97, was chalked out for offences under Section 287 of the IPC, section 25 and 25-A of the Act of 1885 and the investigation commenced. After a thorough investigation, the police submitted a negative Final Report ('f. R. ' for short ). The notices were issued to the complainant and his statement and the statement of his witnesses were recorded by the learned Magistrate. Both complainant and his witnesses reiterated the contents of the FIR. After thoroughly discussing the contents of the FIR, the contents of the negative F. R. and the statement of the complainant and his witnesses recorded by the Court, vide order dated 7-3-1998 the learned Magistrate took cognizance as stated above. Hence, this petition before this Court.

(3.) DR. P. C. Jain, the learned counsel for the petitioner has raised three contentions before this Court : firstly that the incident is said to be of 3-11-1997 and yet the FIR was not lodged till 5-11-1997. Thus, there is an inordinate delay of two days in lodging of the FIR Moreover, no one would take such a risk of pulling a telephone wire over the kv-11 wires. Hence, the story narrated by the complainant seems to be a figment of his imagination. Secondly, that the definition of "mischief as defined in Section 425 of IPC imports an element of intention. However, in the facts narrated by the complainant the intention is not obvious. Thus no case of "mischief is made out against the petitioner. Thirdly and lastly the offences contained under Section 25 and 25-A of the act of 1885 are mutually exclusive to each other. Therefore, the cognizance under both the sections could not be taken simultaneously by the learned Magistrate.