Akhyaram @APPELLANT@Hash State of Rajasthan & Ors

Counsel for the petitioner has contended that co- accused of the petitioner namely Shivcharan, Deshraj, Maan Singh and Hari Singh preferred S.B.

Criminal Misc. Petition No.4921/2018 to assail the order dated 02.05.2017 passed by the court of Judicial Magistrate, Dausa, whereby cognizance of

offences was taken against the petitioner and the co-accused for offences under Sections 420, 467, 468, 471 and 120-B IPC.

The order passed by this court in the case of coaccused in S.B. Criminal Misc. Petition No.4921/2018 Shivcharan & Ors. Vs State of Rajasthan &

Anr. decided on 20.08.2018 reads as under:-

“Present petition has been filed to assail the order dated 2.5.2017 passed by the Court of Judicial Magistrate, Dausa, whereby it took cognizance

for offences under Sections 420, 467, 468, 471, 120B IPC. It is further prayed that the order dated 19.7.2018 passed by the revisional court below

whereby the order of cognizance was affirmed, be also set aside.

Learned counsel for the petitioners at the outset has relied upon the judgment rendered by the coordinate Bench at Principal Seat at Jodhpur in

Kanhaiyalal & Anr. v. State of Rajasthan & Anr., 2011(2) Cr.L.R. (Raj.) 1523 to contend that the court below while taking cognizance of offences

has not given reasons to differ with the report of Investigating Officer.

Para-2 of the judgment in Kanhaiyalal & Anr. (supra) reads as under:-

“2. Assailing the said order, the learned counsel for the petitioners has submitted that before proceeding to take cognizance on the final report

submitted by the Police, it was obligatory for the learned Magistrate to have given reasons as to why he was disagreeing with the reasons given in the

final report. It has further been submitted that the learned Magistrate has simply made bald observation that he had considered the statements

recorded under Section 161 Cr.P.C., but he has not touched the reasons given by the

Investigating Agency before proceeding to take cognizance. The counsel has also relied upon the decision of this Court rendered in the case of

Bhagwan Sahai Khandelwal & Ors. Vs. State of Rajasthan, 2006(2) RCC 853.â€​

The judgment relied by the learned counsel for the petitioners is not attracted on the facts of the case.

After investigation of FIR, if the investigating agency submits Final Report in negative form, the Magistrate has following four options:-

(a). The Magistrate can accept the Final Report in negative form after issuing notice to the complainant and after affording opportunity of hearing to

the complainant.

(b). The Magistrate can take cognizance of offences on the Final Report submitted by the investigating agency.

(c). The Magistrate can send the Final Report for further investigation.

(d). The Magistrate can proceed under ChapterXV of Code of Criminal Procedure. The Magistrate can also record statement of the complainant and

his witnesses under Section 200 Cr.P.C.

In the present case, Magistrate proceeded under Chapter-XV of Code of Criminal Procedure and recorded preliminary evidence of the complainant

and his witnesses. When the Magistrate follow last course and proceed under Chapter-XV of Code of Criminal Procedure, he is not bound to give

reasons to differ with the report of the Investigating Officer.

 In the judgment relied, it is only stated that the Magistrate while considering statements recorded under Section 161 Cr.P.C. has not dealt with the

reasons given by the investigating agency. In the present case, the Magistrate has followed the procedure of complaint case under Chapter-XV.

Therefore, he has to confine himself to the statements recorded under Section 200 Cr.P.C. Therefore, the judgment relied is not applicable and it is not

obligatory on the part of Magistrate to give reasons to differ with the report of the Investigating Officer as Magistrate decided to proceed under

Chapter-XV of Code of Criminal Procedure.

The learned counsel appearing for the petitioners has made an alternative submission that the arrest warrants issued by the Court below be converted

as bailable warrants.

Counsel appearing for the petitioners has relied upon the case of Inder Mohan Goswami & Another Vs. State of Uttaranchal & Others, reported in

A.I.R. 2007 12 SCC 1, to contend that the trial Court at first instance should not have issued warrant of arrest to summon the petitioners, in a case

where the Investigating Agency has submitted a Final Report in negative form. Counsel has further relied upon the case of Manohar Lal Saini &

Others Vs. State of Rajasthan, reported as 2016 (1) CJ (Cri.) (Raj.) 289, to contend that the Division Bench has held that where the accused are

summoned under Section 319 Cr.P.C. as an additional accused, the arrest warrants should not be issued.

Counsel appearing for the petitioners, on the basis of same analogy, has contended that the ratio of law laid down in the case of Manohar Lal Saini

(supra) shall also apply mutatis mutandis where the accused is summoned in a Final Report submitted in negative form.

I have heard learned counsel appearing for the petitioners and learned Public Prosecutor appearing for the State.

In the light of arguments raised, the arrest warrants issued against the petitioners are converted as bailable warrants.

In view of above, the present petition is disposed of â€​

Counsel for the petitioner having argued the matter at some length has prayed that the present petition be disposed of in same terms as in case of co-

accused decided vide order dated 20.08.2018 reproduce above.

It is further prayed by the counsel for the petitioner that since the petitioner is aged 80 years his personal appearance be exempted before the trial

court.

After hearing counsel for the petitioner and Mr. Rishi Raj Singh, ld. PP, the present petition is disposed of, in same terms as in case of Shivcharan &

Ors. Vs State of Raj. & Anr., S.B. Criminal Misc. Petition No.4921/2018 decided on 20.08.2018.

Considering that age of the petitioner who is stated to be more than 80 years of age, his personal appearance before the trial court is exempted subject

to following conditions:-

(a) That the petitioner shall file an undertaking before the trialcourt that he shall appear before the trial court at the time of framing of charges,

recording of evidence and statement of the accused under Section 313 Cr.P.C.

(b) That in the undertaking filed the petitioner shall specificallystate that any evidence recorded in his absence, but in presence of his counsel, shall be

binding upon him.

(c) That the accused-petitioner shall also undertake to appearbefore the trial court as and when called by the trial Judge.