UDAI SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision filed by Udai Singh and four others arise out of following circumstances.

(2.) AFTER completing investigation on a first information report lodged by Avtar Singh, the officer-in-charge of Police Station, Sadul Shahar forwarded to the Additional Chief Judicial Magistrate, Ganganagar a police report under Section 173 of the Code of Criminal Procedure stating therein the commission of offences under Sections 342 and 323 I. P. C. on August 7, 1983 by Tala Singh, Dhanna Singh, Shamsher Singh and Sehab Singh, petitioners Nos. 2 to 5 only and also forwarded alongwith the report the statements recorded under Section 161 of persons whom the prosecution proposed to examine as its witnesses and documents on which the prosecution proposed to rely upon this police report, the Additional Chief Judicial Magistrate Ganganagar took cognizance on 26. 6. 84 of the offences under Sections 342 and 323 I. P. C. and took surety bonds and personal bonds from petitioners Nos. 2 to 5 for their appearance in his court for trial for the said offences. Avtar Singh informant filed a protest petition on 16. 7. 84 before the said Magistrate contending that the police statements of the witnesses under Section 161 Cr. P. C. should the commission of offence under Sections 147, 148 and 364 read with section 149 I. P. C. and cognizance should be taken for these offences and that on the basis of the allegations made by him in the first information report lodged at the police station and the statements of persons recorded by the police under section 161 Cr. P. C. , process should also be issued by the Magistrate against Udai Singh petitioner No. 1 to face trial of the offences before him. By his order dated September 20, 1984 the Chief Judicial Magistrate, Ganganagar took the file of the case to his court. The Chief Judicial Magistrate by his order dated January 7, 1985 rejected both the contentions put forward by Avtar Singh in this protest petition. According to the Chief Judicial Magistrate the police statements of prosecution witnesses and other documents did not disclose commission of offence under Section 364 I. P. C. With regard to the second contention the Chief Judicial Magistrate feeling himself bound by the decision of this Court in Mahendra Kumar Vs. State of Rajasthan and following it held that under Section 319 (1) of the Code, he had competence and power to add Udai Singh as accused in the case and to summon him to stand trial only if the evidence recorded during the trial disclosed Udai Singh's involvement in the commission of the offence and then the second contention put forward by Avtar Singh in his protest petition was premature.

(3.) THE correct decision, in my humble view is that which was given by his Lordship K. S. Sidhu, J. in Chouthamal vs. State of Rajasthan (16) It was not brought to the notice of the learned single Judge in the case of Bagh Singh Vs. State of Rajasthan (17 ). THE view of his Lordship K. S. Sidhu, J. in Chouthmal's case (supra) finds its basis in the decision of their Lordships of the Supreme Court in Raghubans Dube Vs. State of Bihar reported in (18 ).