Pappu And Ors vs State Of Rajasthan And Ors

Petitioners are those accused persons against whom the Police initially had kept the investigation pending under Section 173(8) Cr.P.C. while filing

charge-sheet against the other co- accused.

It is submitted by the petitioners that later on the police has submitted negative final report as against the petitioners. The complainant preferred

protest petition challenging the said negative final report and the learned Magistrate has taken  cognizance vide its order dated 07/03/2019 for

offence under Section 341, 323, 325, 394 read with Section 34 IPC and has issued non-bailable warrants for securing their presence. The petitioners

preferred revision petition which has been rejected by the learned Additional Sessions Judge No.1, Hindaun City, District Karauli vide its order dated

10/09/2020.

Feeling aggrieved of both the aforesaid orders, the present Criminal Misc. Petition has been filed by the petitioners.

Learned counsel for the petitioners contends that it is settled principle of law that cognizance is taken against the offence committed and not the

person and once the cognizance was already taken in relation to the charge-sheet filed earlier, fresh cognizance could not have been taken vide order

dated 07/03/2019 and the process ought not have been issued against the accused-petitioners. It is submitted that the legal course available with the

complainant was to move an application later on for adding the accused if he was aggrieved of the cognizance relating to other co-accused only. It is

submitted that the charges were also framed as against the other co-accused, however, the course adopted by the complainant of filing protest petition

was not available with the complainant and the learned Magistrate has thus erred in taking cognizance and issuing process against the petitioners.

Learned counsel for the petitioners further submitted that the action of the learned Magistrate in issuing non-bailable warrants at the initial stage

was wholly unjustified in view of the law laid down by the Supreme Court in Inder Mohan Goswami & Ors. Vs. State of Uttranchal & Ors.: (2007) 12

SCC 1.

Learned Public Prosecutor opposed the aforesaid submissions and contends that the course adopted was in accordance with the provisions of

Cr.P.C..

After considering the submissions as above, this Court notices that initially the Police submitted charge-sheet against the co-accused alone and at

that stage the investigation was kept pending in terms of Section 173 (8) Cr.P.C. Therefore, the cognizance of offence at that stage taken by the

learned Magistrate was in relation to the action of the co-accused persons. The petitioners were not there before the concerned Magistrate. Later on,

after conducting investigation negative final report has been submitted as against the accused petitioners. The right of a complainant to file protest

petition against the negative final report cannot be said to have been taken away merely because the charge-sheet against other co-accused accused

has been filed. The negative final report is in relation to the investigation conducted after it was kept pending under Section 173 (8) Cr.P.C.. The

culpability of the accused in relation to the crime committed, has been examined on the basis of protest petition and the negative final report and the

learned Magistrate by the impugned order has reached to a conclusion of the involvement of the petitioners in the case. Thus, it is not a case of taking

cognizance second times but is a case of issuing of process relating to cognizance already taken of offence as against the present accused petitioners.

The argument of the petitioners' counsel thus does not hold any force.

On perusal of the order passed by the learned Magistrate, this Court also notices that the complainant has informed the learned Magistrate about

the method and manner in which the investigating officers conduced the investigation. One Amar Singh SHO, Police Station Nadodi and District SP

Karauli and Additional SP Karauli had changed hands in investigation. A complaint in this regard was filed by the complainant to the Lokayukt and a

Departmental Enquiry was also conducted against the concerned investigating officer.

It is case of the complainant that with the purpose to give benefit to the present accused petitioners, the negative final report was given although

involvement of the accused petitioners was apparent. Initially, the accused petitioners had been arrested under Section 151, 107 and 116 of Cr.P.C.

but were later on released by the IO.

Keeping in view the aforesaid aspects, this Court does not find any reason to interfere with the order passed by the learned Magistrate of issuing

process and securing presence of the petitioners by bailable warrants.

Each case has to be examined on its own facts. The judgment passed by the Supreme Court in Inder Mohan Goswami & Ors. Vs. State of

Uttranchal & Ors. (supra) lays down the directions with regard to the circumstances in which the concerned accused should be summoned all the

circumstances where arrest warrants should be issued.

Taking into consideration the aforesaid facts, this Courts is satisfied that the process adopted by the learned Magistrate in accordance with law

and no interference is warranted. The revisional court has therefore rightly not interfered with the order.

So far as the submission of the counsel that the learned Magistrate ought to have issued bailable warrants instead of arrest warrants, this Court

notices that the petitioners have always a (5 of 5) [CRLMP-4603/2020] remedy under the provisions of Cr.P.C. for redressal of their grievance

before the concerned court.

Granting liberty for the same, the present petition is found to be without merit and the same is accordingly dismissed.