Tara Chand and Others vs State of Rajasthan

M.A.A. Khan, J.—In this case Ram Narain complainant-respondent had submitted a written report against the petitioners and one Kishan Lal for their having committed the offences punishable Under Sections 147, 451 and 323, IPC. On his report the police registered Crime No. 31/1987 and after investigation submitted a report u/s 173, Cr.P.C. against Kishan Lal only. A negative report u/s 169, Cr.P.C. had been submitted against the present petitioners. Ram Narain appears to have filed a complaint against the present petitioners and the aforesaid Kishan Lal. By that time the police report u/s 173 Cr.P.C. had already been received on 24-4-87 against Kishan Lal aforesaid. The learned Magistrate, therefore, directed that the complaint filed by Ram Narain be put up with the police case. It appears that after having examined all the 7 material witnesses in the case the Public Prosecutor incharge of the police case moved an application u/s 319 Cr.P.C. requiring the learned Magistrate to summon the present petitioners as co-accused in the case. Ram Narain complainant also moved a similar application on 11-2-1988. By his order dated 26-7-88 the learned Magistrate accepted the prayer of the Public Prosecutor and Ram Narain complainant and summoned the present petitioners as co-accused in the case to answer the charges for the offences Under Sections 147, 323, 451 and 324 IPC. This order passed by the learned Magistrate appears to have been challenged by the present petitioners before this Court by way of a revision u/s 397 Cr.P.C. The said petition appears to have been dismissed by the Court in default of prosecution by the petitioners. The petitioners thereafter filed a petition u/s 482 Cr.P.C. for recalling the order passed by this Court dismissing their petition u/s 397 Cr.P.C. This Court disposed of their petition u/s 482 Cr.P.C. with the observations that the petitioners would be entitled to raise the same objection before the learned Magistrate. The learned Magistrate thereupon heard the parties over the justification of his order dated 26-7-88 taking cognizance of the offences Under Sections 147, 323, 451 and 324, IPC against the petitioners and summoning them as co-accused in the case. By his order dated 7-3-90 the learned Magistrate held that there were no sufficient grounds for taking cognizance of the aforesaid offences against the petitioners and summoning them as co-accused in the case. He accordingly dismissed prosecutor''s and Ram Narain''s application u/s 319, Cr.P.C. and discharged the petitioners. The order so passed by the learned Magistrate on 7-3-90 was challenged in a revision petition filed before the learned Sessions Judge. By his impugned order dated 21-7-90 the learned Sessions Judge held that the learned Magistrate had no jurisdiction to review or revise his earlier order dated 26-7-88. On the basis of the same evidence which had been considered good and sufficient by him for summoning the petitioners as co-accused in the case at an earlier occasion. Holding thus the learned Sessions Judge set aside the order of the learned Magistrate dated 7-3-90 and directed him to proceed further in the matter according to law. It is that order passed by the learned Sessions Judge on 21-7-90 which is being challenged by the petitioners through this petition u/s 397, Cr.P.C.

Mr. S.R. Bajwa, the learned counsel for the petitioners has advanced three fold arguments. In the first place the learned counsel urged that the learned Sessions Judge erred in entertaining the petition u/s 397, Cr.P.C. on the application of a private party. It was submitted that in a case instituted on police report a private party has no locus standi to invoke revisional jurisdiction of the Court of Sessions or this Court. In support of such contention Mr. Bajwa relied upon the decision of the Supreme Court in the case of Thakur Ram Vs. The State of Bihar, and the decision of this Court in the case of Ganga Ram v. Prabhu Dayal 1987 Raj Cri C81.

In the case of Thakur Ram Vs. The State of Bihar, , the Apex Court has observed as Under (at p. 706 of Cri LJ):-

In a case which has proceeded on a police report a private party has no locus standi. No doubt, the terms of Section 435 are very wide and he can even take up the matter suo motu. The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book.

The above observation of the Supreme Court were followed by this Court in Ganga Ram'' case 1987 Raj Cri C 81 (supra) and it was held that a private person has no locus standi to invoke revisional jurisdiction in a case proceeded on a police report.

It may be noted that the observations made by the Apex Court in the case of Thakur Ram Vs. The State of Bihar, make some exceptions. Their Lordships of the Supreme Court have not laid down a proposition for universal application that in no case a private party can invoke the revisional jurisdiction of the Sessions Judge in a case proceeded on police report. There may be good reason for the aggrieved party to approach the revisional Court where the State has not chosen to do so. Therefore, each case shall have to be judged, on its own facts for applying the principle laid down by their Lordships in Thakur Ram''s case (supra).

In the instant case it is evident that Ram Narain complainant had already filed a regular complaint in the court of the learned Magistrate as he held felt dissatisfied with the result of the investigation conducted by the police. The learned Magistrate was required to act in accordance with the provisions of Section 410, Cr.P.C. and to stay the proceedings of the complaint in case the investigation of the case was pending by that time. After having received the police report against Kishan Lal, one of the alleged assailants, only, the Magistrate must have proceeded to examine the witnesses as produced by the complainant in support of his complaint and then to have passed appropriate orders in the case. The learned Magistrate does not appear to have done so. It appears that he differed his decision on the complaint of Ram Narain at that stage of the proceedings. It was after recording the statement of all the material 7 witnesses in the police case that the public prosecutor as also Ram Narain complainant had moved their applications u/s 319, Cr.P.C. The petitioners had felt aggrieved against Magistrate''s order taking cognizance of the offences against them and, therefore, they had a right to approach the proper court by way of revision. They did so. The order passed by this Court while disposing of their petition u/s 482, Cr.P.C. required the learned Magistrate to hear them on the merits of the order passed in their absence. The learned Magistrate could have thus passed his order in either way causing grievance either to the petitioners or to the complainant. In the facts and circumstances of the case, therefore, the order passed by the learned Magistrate causing grievance to Ram Narain complainant would fall within the expression "barring cases", as visualised by the Apex Court in Thakur Ram Vs. The State of Bihar, . I, therefore, hold that the revision petition filed by Ramnarain complainant before the learned Sessions Judge was maintainable in law.

It was next urged by Mr. Bajwa that the learned Sessions Judge has set aside the order of the Magistrate dated 26-7-88 on the sole ground that the learned Magistrate had no jurisdiction to review his own order. It was submitted that the order taking cognizance of certain offences against the petitioners by the learned Magistrate was an interlocutory and not a final order and, therefore, the learned Magistrate had every jurisdiction to re-consider the justification of his order dated 26-7-88. That apart, urged Mr. Bajwa, the learned Magistrate was bound to obey the directions of this Court to the effect that he should hear the petitioners over the matter of taking cognizance of certain offences against them. In this behalf Mr. Bajwa relied upon the Supreme Court''s decision in the case of K.M. Mathew Vs. State of Kerala and another, .

In the case of K.M. Mathew Vs. State of Kerala and another, the Apex Court held as Under (at p. 3781 of Cri LJ):-

It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused.

The observations made by their Lordships of the Apex Court thus clearly lay down the rule that an order taking cognizance of certain offences against a person and summoning him as an accused in the case is in the nature of an interim order which can be re-considered by the Magistrate himself at a later stage of the proceedings. It may be kept in mind that an order summoning a person as an accused by issuing process u/s 204, Cr.P.C. or making an order u/s 319, Cr.P.C. is passed in his absence, the person so summoned as an accused in a case must, therefore, have a legal right to raise objection against the order passed against him in his absence. That is what this Court had also observed while disposing of petitioners'' petition u/s 482, Cr.P.C. The learned Sessions Judge was therefore, in error in taking the view that the Magistrate had no jurisdiction to reconsider the order passed by him on 26-7-88 taking cognizance of the offences against the petitioners. For that reason the order under revision cannot be sustained.

The learned Sessions Judge has not decided the petition of Ram Narain complainant before him on merits of the case. In view of such state of affairs I would have sent the case back to him to dispose of Ram Narain''s petition u/s 397, Cr.P.C. on its own merits. However, I find that the facts and circumstances do not justify the adoption of such a course. On going through the record of the lower Court I find that it is a case of two simple injuries caused to a lady of Ram Narain''s family. For those injuries Kishan Lal has already been tried by the lower court and he has even been examined u/s 313, Cr.P.C. It was after the examination of all the 7 witnesses in the police case that the public prosecutor and Ram Narain had chosen to press their applications u/s 319 Cr.P.C. It is evident that such applications had been designedly moved by them at a belated stage and amounted to abuse of the process of the Court. !( is trite law that such applications should be moved at the earliest occasion so that there may not be unnecessary delay in the trial of criminal cases. More often than not it is being observed by this court that such applications are made by the prosecutors at the fag end of the trial against a person. Allowing such applications at that belated stage causes irreparable harassment to the accused who has faced a long trial as by reason of the order passed by the Magistrate summoning some additional persons as co-accused in the case, the entire evidence shall have to be recorded afresh and the trial shall be held de novo. It is generally done to harass the accused persons. Such a course should not be allowed to be adopted by the Magistrates in the interests of their own institution and the administration of the criminal justice. The present case presents a similar instance.

For these reasons, therefore, I do not feel inclined to send the case back to the learned Sessions Judge and direct him to dispose of Ram Narain''s petition u/s 397, Cr.P.C. on its own merits.

In the result the impugned order dated 21-7-90 passed by the learned Sessions Judge setting aside Magistrate''s order dated 26-7-88 is hereby set aside and the petition is allowed.