BHURA AND OTHERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is an application under section 482, Code of Criminal Procedure, 1973 by which order dated 4.1.77 passed by the Addl. Munsif Magistrate, Neem-ka-thana in Criminal Case No. 16 of 1977 is sought to be quashed by the accused- petitioners.

(2.) The facts in brief are that an incident took place on 5.4.76. Two counter reports of the incident were lodged. Nathu lodged a report at police station, Neem-ka-thana on 5-4-76 at 7. p. m. mentioning that when he prevented Noonda from taking camel-cart through his field, accused persons were called by Noonda who came armed with lathis etc., and they caused injuries to 10 persons from the side of the accused Nathu, Bhura and others. After investigation, a challan was submitted against 16 persons under sections 147, 148, 149, 447, 323 and 324 of the Indian Penal Code.

(3.) The other side lodged a report through Ganpat mentioning that when his father was taking the camel-cart, Mst. Ramli and Jamna came with lathis and began to beat his father. It was alleged that other accused also came and gave beating to Noonda. The police registered a case under sections 147, 323 and 146 I. P. C. There was investigation and re-investigation but ultimately final report was submitted on 29-10-76 in the court of the learned Addl. Munsif and Judicial Magistrate, Neem-ka-thana. This was objected to by other side. The learned Magistrate rejected the final report and took cognizance under section 190 Cr. P. C. This order of rejecting the final report is being challenged in this court on the ground that the view of the learned Magistrate that the police was incompetent to consider the question of right of private defence is erroneous in law. The learned Magistrate has said that this can be decided only by a competent court and not by the police. Mr. Tibrewal appearing on behalf of the petitioners has submitted that when a report of the police enquiry and investigation is received by the Magistrate, the Magistrate is competent to accept the plea of self defence and thereby to accept the final report. He has cited the judgment of the Honourable Supreme Court reported in Vadilal Panchal Vs. Dattatreya Dulaji Ghadigaonkar and another, AIR 1960 S.C. 1113 . In this case it was held that a Magistrate who directs an inquiry under S. 202 Cr. P. C., for ascertaining the truth or falsehood of a complaint and receives a report from the enquiring officer supporting a plea of self-defence made by the person complained against, it is open to him to hold that the plea is correct on the basis of the report and the statements of witnesses recorded by the enquiring officer. It is further held that it is not obligatory on the Magistrate, as a matter of law, to issue process in such a case and leave the person complained against to establish his plea of self-defence at the trial.