BABU LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By this petition, the petitioners have assailed the order passed by the Judicial Magistrate First Class, Jaisalmer in Criminal Case No. 115/1995 framing charge against the accused revision petitioners under Sections 420, 466, 471, 209 and Section 120-B of the Indian Penal Code and proceeded to try the same. This order is challenged with order dated 23-9-1996 whereby the learned Judge held that the question of sentences under Section 197 of the Code of Criminal Procedure, in relation to accused No. 1 and 3 does not arise as the offence ultimately committed by them was not so committed in discharge of their duties.

(2.) Both the orders are assailed on the ground that they are unsustainable in law. The first and basic attack is that the proceedings are initiated on a police report which is impermissible in law. No cognizance of the offence with which the petitioners are charged can be taken, except on a complaint to that effect by the Court concerned and, hence in view of the embargo contained in Section 195 of the Code of Criminal Procedure, the prosecution is liable to be quashed. The second contention is that it is the allegation of the prosecution that the accused Nos. 1 and 3 were Sar Panch and Gram Sewak or Secretary of the Gram Panchayat at the time when the offence was committed and they have fabricated or abetted the fabricating of the lease deed in favour of accused No. 2 Bhagwana Ram and this offence was committed by them with a view to use that lease deed in a proceeding, namely, a suit instituted at the behest of Bhagwana Ram. It is, therefore, the contention of the accused that the sentences, as contemplated by Section 97 of the Code of Criminal Procedure is necessary in the instant case.

(3.) Taking up the first contention regarding lack of jurisdiction to take cognizance in the instant case, it should be noticed that admittedly the incident has occurred in Civil Misc. Case No. 15/1992 pending on the file of Civil Judge Sr. Division, Jaisalmer, wherein accused No. 2 Bhagwana Ram sought an injunction against one Govind Ram and in which lease deed in favour of the accused Bhagwana Ram was produced. Also produced was a Register showing the entry of a lease deed by the Secretary of the Gram Panchayat. The learned Civil Judge, Sr. Division, Jaisalmer suspected that the entry No. 21 is deliberately cancelled and, therefore, amounts to forgery committed with intention to defraud the litigant in a litigation. He, therefore, directed the Station House Officer, Police Station Khuhadi to investigate the matter. The Station House Officer, after investigation, filed a challan and a Report under Section 173 of the Code of Criminal Procedure before the Judicial Magistrate, 1st Class, Jaisalmer, who, after rejecting the application for quashing the prosecution for want of complaint under Section 195 of the Code of Criminal Procedure, proceeded to frame charges as aforesaid by the impugned order. It is this, order, which is impugned in this petition on the ground that the learned Judge has grossly misconducted the provisions of Section 195 of the Code of Criminal Procedure. The learned Judge should have been that in the present case, the complaint is not filed by the Presiding Officer of the Court, namely, the Civil Judge, Sr. Division, Jaisalmer and, therefore, no cognizance of the matter could be taken by the learned Magistrate. For adjudication of this question of law, it would be necessary to know in detail the provisions of law, reliance on which is placed for the contention that the prosecution is liable to be quashed for lack of jurisdiction.