Shivcharan @APPELLANT@Hash State of Rajasthan & Ors

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 Chapter-XV 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.