Praveen Kumar vs State Of Rajasthan And Anr

The petitioner by way of this                     criminal    misc. petition challenges the order dated 5th November, 2019 passed by the learned Additional Chief Judicial Magistrate, Nadbai, District Bharatpur, whereby the learned Magistrate has directed the Medical Board to be constituted to conduct the MLR of the injured person.

Learned counsel for the petitioner submits that learned Magistrate does not have this power under Code of Criminal Procedure to direct for a medical examination through Medical Board and relies on the judgments passed by the Supreme Court in Divine Retreat Centre Vs. State of Kerala & ors., reported in (2008) 3 SCC 542 as well as in Gangadhar Janardan Mhatre Vs. State of Maharashtra & Ors., reported in (2004) 7 SCC 768.

Learned counsel submits that such powers to interfere with the investigation could not have been exercised at the behest of accused by learned Magistrate.

I have considered the submissions.

This court notices firstly that the order was passed on 5 th November, 2019. The matter comes up today after almost a year, there was no interim order passed. However, the order dated 5 th November, 2019 has not been complied with and the Medical Board has not conducted the medical examination of the petitioner, who did not present himself before the Medical Board.

It also notices that the order was passed by learned Magistrate on an application moved by the accused while the case was under investigation stating therein that the police authorities along with complainant had got a forged medical report prepared dated 13th October, 2019 and after medical report was prepared on 13th October, 2019, later on the date was changed to 14 th October, 2019. In this regard, the Magistrate has called report from the concerned IO who also admitted the fact that the date was subsequently changed and even on the X-ray report, the date was changed from 13th October, 2019 to 14th October, 2019. Finding such discrepancies with the investigation, the learned Magistrate directed the medical to be conducted by the CMHO, Rajbahadur Memorial Hospital, Bharatpur. However, instead of presenting himself for medical examination, the petitioner has approached this court and did not get himself medically examined as more than one year has passed. The conduct of the petitioner- complainant thus is per-se clear and supports the apprehension which the learned ACJM observed that the concerned medical report may have been forged otherwise there was no reason for the petitioner not to present himself before the Medical Board and get himself medically re-examined.

So far as the powers of learned ACJM with regard to the directions are concerned, the provisions of Cr.P.C. are complete in itself. Not only the Magistrate has itself powers to examine the witnesses and conduct investigation at his own level but he has also powers under Section 210 Cr.P.C. to direct investigation to be conducted in a fair and proper manner by the Investigating Agency. Once it comes his notice that Investigating Agency is not conducting investigation fairly or properly or there is some discrepancies, it is apparent from the case, he can always direct the concerned Investigating Agency to conduct investigation in accordance with the directions as issued by him. In opinion of this court, such directions issued by the concerned Magistrate are inherent powers within the scope of Section 210 Cr.P.C. available to the Magistrate.

In Divine Retreat Centre (supra), the Apex Court was examining a petition and an anonymous petition filed directly in the name of a Judge of High Court where the High Court entertained the same under Section 482 Cr.P.C. and in the said background, it made observations relating to the powers and scope of inherent jurisdiction under Section 482 Cr.P.C. The case does not relate to powers of the learned Magistrate in relation to investigation being conducted out of its jurisdiction and therefore, the said judgment will have no application.

In Gangadhar Janardan Mhatre (supra), in fact, the Supreme Court asserts the power available to a Magistrate in following terms:

"13. When the information is laid with the Police but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Reg.) vs. Union of India. It was specifically observed that a writ petition in such cases is not to be entertained."

Keeping in view the above, the submission of learned counsel for the petitioner is found to be without basis.

Learned Magistrate shall take into consideration the fact that the petitioner has avoided to get himself medically examined for more than one year and will also see as to what will be the effect thereto to the investigation.

The criminal misc. petition is dismissed. All pending applications also dismissed.