Jai Prakash vs The State of Rajathan and Another

R.S. Chauhan, J.—Aggrieved by the order dated 30.5.2008, passed by the Chief Judicial Magistrate, Jhunjhunu, whereby the learned Magistrate has taken cognizance against the Petitioner for offences under Sections 323, 497 & 379 IPC, and also aggrieved by the order dated 18.6.2010, passed by the Additional Sessions Judge (Fast Track) No. 1, Jhunjhunu, whereby the learned Judge has upheld the order dated 30.5.2008, the Petitioner has approached this Court.

The brief facts of the case are that the complainant-Respondent No. 2 filed a complaint against the Petitioner before the trial court in respect of an illicit relation of his wife with the Petitioner, and with regard to theft of Rs. 50,000/- from his house. After recording the statements of the complainant and two other witnesses namely Hari Singh and Mahendra under Sections 200 and 202 Cr.P.C., vide order dated 30.05.2008, the trial court took cognizance for offences under Sections 323, 497 & 397 IPC against the Petitioner. Against the order dated 30.05.2008, the Petitioner filed a revision petition before the learned Judge. However, Vide order dated 18.06.2010, the learned Judge dismissed the revision petition. Hence, this petition before this Court.

Mr. B.S. Chhaba, the learned Counsel for the Petitioner, has contended that the Petitioner has been implicated falsely in this case. The falsity of the case is obvious from the fact that the complainant had lodged a complaint before the court against the Petitioner, while simultaneously he had also sent a written complaint to the S.P. as well as initiated proceeding under Sections 107, 116(3) & 151 of Code of Criminal Procedure against the Petitioner. Moreover, there are certain contradictions with regard to whether the Petitioner had taken the bag of money, or had merely taken the money out of the bag. These contradictions have not been noticed by the learned Magistrate while taking cognizance. Secondly, while entertaining the written complaint submitted by the complainant, while his statement was recorded, the statement of his wife was never recorded. Therefore, the learned Magistrate was certainly not justified in taking cognizance against the Petitioner. Lastly, without noticing the illegality committed by the learned Magistrate, the learned Judge has upheld the order.

Heard the learned Counsel for the parties and perused the impugned order.

It is, indeed, a settled principle of criminal jurisprudence that at the time of taking cognizance, a Magistrate is not expected to meticulously examine the evidence. Therefore, even if there were certain contradictions, the said contradictions cannot be looked into at the time of taking cognizance. At the initial stage of taking cognizance, the Magistrate is concerned merely with the existence of "a prima facie" case against the Petitioner. Thus, the learned Magistrate has not committed any illegality in case he has overlooked certain contradictions.

It is not number of witnesses, but the quality of witness which is crucial. Since the complainant, in his statement, has sufficiently created a prima facie case against the Petitioner, the learned Magistrate was not required to record the statement of the complainant''s wife. Therefore, the second contention raised by the learned Counsel for the Petitioner is unacceptable.

A bare perusal of the statement of the complainant clearly reveals that he has alleged an offence of theft as well as the offence u/s 323 Code of Criminal Procedure against the Petitioner. Thus, prima facie a case is clearly made out. Hence, the order dated 30.05.2008 cannot be faulted. The learned Judge has equally not committed any illegality, or perversity, or infirmity in upholding the order of cognizance dated 30.05.2008.

Hence, this petition is devoid of any merit. It is, hereby, dismissed. Consequently, the stay petition also stands dismissed.