Rajasthan High Court

CRIMINAL MISCELLANEOUS 162 of 2004 on 18 September 2003

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPURO R D E R

Kanhiya Lal & Ors.

Vs. State of Rajasthan & Anr.

S.B.CR.MISC. PETITION NO.162/2004

DATE OF ORDER :: April 04, 2007

PRESENT

HON'BLE MR.JUSTICE H.R.PANWAR

Mr.Rajendra Charan, for the petitioners.Mr.Sandeep Mehta, for respondent No.2.Mr.Rameshwar Dave, P.P.

BY THE COURT:

By the instant criminal misc. petition under section 482Cr.P.C., the petitioners have challenged the order dt. 18.9.2003passed by the Additional Chief Judicial Magistrate, Begun, Distt.Chittoprgarh (for short `the trial court' hereinafter), whereby thetrial court took the cognizance for the offences under sections341, 323 and 149 I.P.C. and issued the process against thepresent petitioners.

I have heard learned counsel for the parties.

It is contended by the learned counsel for the petitionersthat after investigation, the police has filed the negative finalreport. The trial court without considering the groundsmentioned in the negative final report and without there beingany fresh material, took the cognizance of offence and,therefore, in view of the decision of Hon'ble Supreme Court inSuresh vs. Mahadevappa Shivappa Danannava & Anr., 2005Cr.L.R. (SC) 295, the order of the trial court suffers from errorand illegality.

Learned counsel for the complainant submits that from thematerial placed by the police along with the negative final report,prima facie offences are made out, however, does not disputethe proposition laid down by the Hon'ble Supreme Court inSuresh vs. Mahadevappa Shivappa Danannava & Anr. (supra),wherein the Hon'ble Supreme Court observed as under:

“The Magistrate, in our opinion, has notconsidered the report filed by the policeu/s.156(3)Cr.P.C.judicially.Irrespective of the opinion of the police,the Magistrate may or may not takecognizance u/s. 190(1) of Cr.P.C.”

Be that as it may, since in the instant case, from the perusal ofthe order impugned, it does not appear that the trial court hasapplied its mind to the material placed before it before taking cognizance of the offences.

In Kishun Singh vs. State of Bihar, (1993) 2 SCC 16, theHon'ble Supreme Court held that when the Magistrate takesnotice of the accusations and applies his mind to the allegationsmade in the complaint or police report or information and onbeing satisfied that the allegations, if proved, would constitute anoffence, decides to initiate judicial proceedings against thealleged offender, he is said to have taken cognizance of theoffence. In this view of the matter, the order impugneddeserves to be set aside and the matter deserves to beremanded to the trial court to pass a fresh order keeping in viewthe decision of the Hon'ble Supreme Court in Suresh vs.Mahadevappa Shivappa Danannava & Anr. (supra).

In the result, the criminal misc. petition is allowed. Orderdt. 18.9.2003 is set aside and the matter is remanded to the trialcourt to pass a fresh order in accordance with law. Parties toappear before the trial court on 07.5.2007.

[H.R.PANWAR],J.

-m.asif/

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