VIMLA DEVI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Jugal Kishore had lodged a F.I.R. on 23.1.86 alleging that while be was sleeping in his house at about 11-12 p.m., accused Hem Raj and others entered his house and started breaking open the door. It was stated that accused Ganpat was armed with knife; and others were armed with lathies. It was also stated that the ladies were also there and theyT were empty handed. On this report, the police, after investigation, filed challan against eight persons. On the day when the matter case before the JudI. Magistrate. Pipar i.e. 1.5.86, the Assistant Public Prosecutor filed an application before the Magistrate for taking cognizance against ladies petitioners. The JudI. Magistrate took cognizance on that very day and bailable warrants were issued against the petitioners. Petitioners filed Criminal Revision No. 322/86, which was dismissed by the AddI. Sessions Judge No. 1, Jodhpur, on 5.4.87. Hence the petitioners have made this application before this court under section 482 Cr. P.C.

(2.) The learned counsel for the petitioners has argued that both courts below have ignored the provisions contained in S.319 Cr. P.C. and 5. 3 of the Evidence Act. Reliance has been placed on a Bench decision of this Court in Sheoram Singh v. State of Rajasthan, and a decision of a learned Single Judge of this Court in Boga v. State of Rajasthan. I had an occasion to deal with a similar matter in Uadi Singh & others v. The State of Rajasthan. In that case I had pointed out that the decision in Sheoram Singh v. State of Rajasthan (supra) cannot be read as an authority with respect to the powers of the JudI. Magistrate taking cognizance of offence and finding that there was sufficient ground for proceeding to issue process for procuring the attendance of an accused under section 204 of the Code. Their Lordships is Sheoram Singhs case themselves in para 24 of the reported judgment at page 550 of 1982 R.L.R. stated that they had got no hesitation in holding as proposition of law that two stages of section 190 Cr. P.C. and section 319 Cr. P.C. are patently distinct, different distinguishable and they have got their separate occupied fields which nowhere ever laps each other. It was thus, made clear by their Lordships in Sheoram's case that the stage of taking cognizance under section 190 Cr. P.C. at the stage of refusal or acceptance of the police report under section 173 Cr. P.C. and summoning an accused under section 319 Cr. P.C. are distinct stages. In Sheoram Singhs case the case was for trial before the Sessions Court and was not before the JudI. Magistrate for taking cognizance of the offence or issuing process against offender. The decision in Sheoram Singh's case therefore, cannot be made the basis for holding that the JudI. Magistrate had no jurisdiction to issue process against Udai Singh if he was satisfied that there was sufficient ground for proceeding against all the persons. The observations quoted by learned Single Judge of this Court in the case of Bagh Singh v. State of Rajasthan at the foot of the para 7 of the reported judgment from Sheoram Singhs case should not be read divorced from the context in which the observations were made by their Lordships in Sheoram Singhs case. I am not unmindful of the fact that they are decisions of this Court for instance, in the case of Hukma Ram v. State of Rajasthan, which had followed a Bench decision in Sheoram Singhs case but it is clear that in Hukma Rams case also, the Assistant P.P. had moved an application to the Sessions Judge at the stage when the case was for sessions trial. Before the Division Bench in Sheoram Singh's case, reliance was placed on the decision in Ramba Ram v. State, wherein, it was held that it was possible for a Magistrate to take cognizance of an offence on a police report even through the police wants him to accept its negative report contains facts constituting offence and that it was not necessary for the Magistrate to record evidence before accepting the police report. He could have applied his mind to the report and if he found that any offence could be constituted on the basis of the facts mentioned therein, he could take cognizance of the offence. This decision was not overruled in Sheoram Singh's case but on the other hand, was held to be correct. It was distinguished on the ground that when the case had come to the Court of Sessions, power under section 319 of the Code could only be invoked. The decisions in Ajayab Singh v. State of Rajasthan and Harji Ram & others v. State of Rajasthan which were overruled by Sheoram Singh's case also related to the cases where he was before Sessions Court after commitment by the Magistrate and not before the Magistrate. The correct decision, in my humble view is that which was given by his Lordship K.S. Sidhu J. in Chouthmal v. State of Rajasthan. It was not brought the notice of the learned single Judge in the case of Bagh Singh v. State of Rajasthan (supra). The view of his Lordship K.S. Sidhu, J. in Chouthmal case (supra) finds it a basis in the decision of their Lordship of the Supreme Court in Raghubans Dube v. State of Bihar.

(3.) This, it is quite clear that the JudI. Magistrate Pipar, was perfectly competent to take cognizance against the petitioners. This petition has no force in it and it is hereby dismissed.