GHANSHYAM SONI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) A dispute between the two neighbours, a minor assault, allegedly caused by the petitioner to the complainant, Smt. Bina Devi, has kept this case alive for almost two decades. The petitioner has challenged the order dated 14-2-90 passed by the Addl. Chief Judicial Magistrate, No. 4, Jaipur City, whereby the learned Magistrate had accepted the negative Final Report ('f. R. ' for short) and simultaneously directed the statement of the complainant to be recorded under Section 200 of the criminal Procedure Code ('the Code' for short ).

(2.) THE brief facts of the case are that on 14-1-89 Smt. Bina Devi, the non-petitioner no. 2, had lodged a written report at Police station, Manak Chowk, wherein she claimed that in the morning when she came out of her bathroom, she saw the petitioner trying to take out the door of her house. She immediately told him not to do so. Upon her protest, he entered her house and punched over the nose. She cried out in pain. Upon hearing her cries, her son rushed to her rescue. However, the petitioner's two sons, namely. Tillu and Montu and his son-in-law also joined the fray. She further alleged that her son Hemant and her two daughters, sarita and Suman and her husband were also assaulted by the petitioner and his family members. On the basis of this report a formal FIR, FIR No. 24/89, for offences under Sections 482 and 323, i. P. C. was registered. However, after a thorough investigation the police submitted a negative F. R. before the concerned Court. Meanwhile the complainant also submitted a complaint before the learned Magistrate. Since a FIR and a complaint about the same incident co-existed, the learned Magistrate, while invoking his power under Section 210 of the code, directed the police to submit its report. Therefore, the police again submitted a negative F. R. , before the learned Magistrate. While considering the negative F. R. , the complainant and her counsel were present before the Court. The complainant protested against the negative F. R. and told the Court that the police had submitted the negative F. R. Vide order dated 14-12-89 after hearing the complainant, the learned magistrate accepted the negative F. R. in collusion with the petitioner. However, simultaneously he directed that the statement of the complainant and her witnesses should be recorded under Sections 200 and 202 of the Code. Subsequently, her statement and the statement of her witnesses were recorded and on the basis of the statement of the complainant and her witnesses the learned Magistrate took cognizance of the offences under Sections 323 and 452, I. P. C. Since the petitioner was aggrieved by the said order he filed a revision petition before the Addl. District and Sessions Judge No. 8, Jaipur city, Jaipur. However, vide order dated 12-6-97 the learned Judge dismissed the said revision petition. Hence, this petition before this Court.

(3.) MR. M. K. Kaushik, the learned counsel for the petitioner, has strenuously argued that once a negative F. R. , has been accepted by the learned Magistrate in the presence of the complainant, then the Magistrate is precluded from recording the complainant's statement and of his/her witnesses under Sections 200 and 202 of the code. He is further precluded from taking cognizance of the offences on the basis of the statement of the complainant and his/ her witnesses recorded under Sections 200 and 202 of the Code. In order to support his contention, he has relied upon the case of vishnu Mourya v. State of Rajasthan and Anr. (1989 (2) WLN 141) : (1990 Cri LJ 1750 ). Therefore, once the learned Magistrate had accepted the negative F. R. , vide order dated 14-12-89, simultaneously he could not direct the recording of the statement of the complainant and her witnesses. Moreover, on the basis of their statement, the learned magistrate could not have taken the cognizance. According to the learned counsel acceptance of a negative F. R. , is a judicial order passed by the competent Court. Therefore under section 362 of the Code once the court has signed the order it does not have the power to alter or review the same. Therefore, once the negative F. R. has been accepted, taking of the cognizance by the same court tantamounts to reviewing the order accepting the negative F. R.- the power to review the order accepting the negative F. R. , does not lie with the Court. Therefore, the impugned order is contrary to Section 362 of the Code.