HAMID Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE stay application in Criminal Misc. Petition No. 195/87 came up for orders to day. Since the arguments on the stay application as well as the main petition were the same with the common consent of both the learned Counsel for the parties it was decided to hear arguments in details in the main petition as well and thus by this order the main petition under Section 482 Cr. P.C. is being disposed of.

(2.) THE petitioner, Hamid Ali, filed a First Information Report at police station Todabheem on April 24, 1978 for offences under Sections 341, 323 and 147 I.P.C. The allegations levelled in this report were that the petitioner Hamid Ali on April 23, 1978 when was returning after grazing his she -goats he was way laid by various persons named in the report and was beaten by fists and kicks. The police after investigation submitted a final report and observed therein that the report was false and it was filed for illegally harassing the complainant. The SHO concerned forwarded his final report to Asstt. Public Prosecutor through Circle Officer, Hindaun and it was recommended that a complaint under Section 182 I.P.C. should be filed against the complainant petitioner. On 12 -9 1978 the Asstt. Public -Prosecutor filed a complaint in the court of Munsiff and Judicial Magistrate, Hindaun which was registered on 6 -10 -78. The accused -petitioner appeared before the court on 20 -2 -1979 along with his counsel and moved an application to the effect that proceedings should be quashed. In this application it was mentioned that the accused petitioner had also filed a complaint about the same incident on 31 -7 -1978 on which cognizance had been taken by the learned Magistrate on 12 -10 -78 and the said complaint is pending trial where in the next day fixed was 16 -3 -1979 for the evidence of the petitioner. He had filed the complaint because the police was not properly investigating into the case. Arguments were heard on this application and the learned Magistrate passed a detailed order on 17 -5 -79. In this order the Id. Magistrate observed that it is proved that a complaint is pending in the matter in which the final report has been filed and cognizance on the same has been taken for offence under Sections 147, 323, 341 and 427 I.P.C. and, therefore, the complaint under Section 182 I.P.C. cannot be proceeded in view of the decision of this court reported in i961 RLW 534, hence the proceeding under Section 182 I.P.C. was ordered to be dropped.

(3.) THE complaint filed by Hathimali was dismissed by the learned Magistrate on 27 -8 -1981 where in the learned Magistrate observed that it appears from the record that a complaint under Section 182 I.P.C. was instituted against the accused -petitioner and the proceedings there in were dropped as this complaint was pending It was now open to the prosecution to proceed into the said complaint under Section 182 I.P.C. in accordance with law. After more than three years of passing of this order the learned Asstt. Public Prosecutor on 2 -7 -1984 moved an application before the learned Magistrate that the complaint dropped vide order, dated 17 -5 -1979 be taken on number and accused be proceeded with. He moved another application on 4 -8 -1984 to the same effect. These applications were dealt with separately and were disposed of vide impugned order, dated 23 -8 -1986. In this order the learned Magistrate took cognizance of offence against the accused. On this date he registered the case and issued process. That order has been challenged by the petitioner in this petition.