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Bhanwar Lal Vs. Kishori Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1977CriLJ1435; 1977()WLN148
AppellantBhanwar Lal
RespondentKishori Lal and ors.
Excerpt:
.....proceeded with on a charge which is a groundless one in order to prevent undue harassment of the accused persons. it is open to the magistrate to discharge the accused without taking any evidence, if he is otherwise satisfied on materials that the charge is groundless one. it is true that ordinarily the magistrate should record evidence and proceed under section 244 cr. p.c. and thereafter to take further proceedings under sub-section (1) of section 245 cr. p.c. but it is equally true that in view of the language employed by the legislature in sub section (2) of section 245 cr. p.c. there is no bar against the magistrate in discharging the accused even without recording the evidence in an appropriate case.;(b) criminal procedure code - section 482--inherent powers--complaint brought on..........dismissed the complaint for want of proof. the learned judge, however, further observed that the accused persons are acquitted, though this term was wrongly used, as he should have used 'discharged' instead. it is also pertinent to mention here that complainant behari lal had also filed an affidavit before the learned sub-divisional magistrate, nawalgarh stating therein that no occurrence had taken place and he was made to file a wrong report. these facts are almost admitted and they, are not being challenged before me. it may be further mentioned that the complainant behari lal did not challenge the order of discharge before any superior court and the matter ended there.3. thereafter one bhanwar lal filed a fresh complaint on july 24, 1974 on the same allegations as were made by.....
Judgment:
ORDER

M.L. Joshi, J.

1. This is an application Under Section 482 of the Code of Criminal Procedure challenging the order of the learned Munsif and Judicial Magistrate, Nawalgarh dated November 4, 1976.

2. The brief facts which need to be mentioned for the disposal of this application are as fallows:-

A first information report was lodged by one Behari Lal at Police Station, Nawalgarh on October 15, 1971 Under Section 147, 323, 326 read with Section 149 of the I. P. C. Police started investigation on the report. During the pendency of investigation, Behari Lal filed a private complaint on May 1, 1972 in the Court of Munsif and Judicial Magistrate, Nawalgarh on the same allegations as mentioned in the first information report. In the mean time the police gave final report after investigation, but that did not fructify as the private complaint by that time had already been filed before the learned Munsif and Judicial Magistrate. The prosecution was called upon to lead evidence in support of the complaint Under Section 244, Cr. P. C. But the complainant Beharilal on July 21, 1973 made an application in writing to the effect that all his witnesses have turned hostile and they do not want to give any evidence in support of the complaint. It was also stated in that application that on that account the complainant gives up the witnesses and he no more wants to adduce any evidence. He, therefore, prayed that his complaint be dismissed for want of evidence. Upon that application the Munsif and Judicial Magistrate, Naw-algarh by his order dated July 21, 1973 dismissed the complaint for want of proof. The learned Judge, however, further observed that the accused persons are acquitted, though this term was wrongly used, as he should have used 'discharged' instead. It is also pertinent to mention here that complainant Behari Lal had also filed an affidavit before the learned Sub-Divisional Magistrate, Nawalgarh stating therein that no occurrence had taken place and he was made to file a wrong report. These facts are almost admitted and they, are not being challenged before me. It may be further mentioned that the complainant Behari Lal did not challenge the order of discharge before any superior Court and the matter ended there.

3. Thereafter one Bhanwar Lal filed a fresh complaint on July 24, 1974 on the same allegations as were made by Beharilal in his previous complaint. The learned Munsif and Judicial Magistrate, Nawalgarh after making enquiry Under Section 202 Cr. P. C. took cognizance on that complaint and issued process against the accused persons. The accused persons thereupon in response to the process moved the Court and put all the materials in regard to the filing of the previous complaint by Beharilal and the same having been dismissed. Further the accused persons also submitted a certified copy of the application of Beharilal wherein he had stated that he had no evidence and he gives up all the witnesses as they had turned hostile. A certified copy of the affidavit of Beharilal was also submitted by the accused persons wherein it was stated by Beharilal that no occurrence had taken place as alleged by him in his complaint and that he was made to file wrong complaint. The learned Munsif and Judicial Magistrate taking note of these material documents and further taking notice of the fact that complainant Bhanwarlal had filed the complaint just after a period of about 2 34 years discharged the accused persons.

4. Being aggrieved by the order of discharge of the learned Munsif and Judicial Magistrate, Nawalgarh dated November 4, 1976 the complainant Bhanwarlal moved the Sessions Judge. Jhunjhunu by way of revision. The learned Sessions Judge after going through the elaborate order of the learned Magistrate came to the conclusion that in view of the reasons pointed out by the learned Magistrate the continuance of the proceedings against the accused persons in the facts and circumstances of the case will be nothing but the abuse of the process of the Court. In that view of the matter the learned Sessions Judge upheld the order of discharge and dismissed the revision application.

5. It has been contended by the learned Counsel for the petitioner that once the Magistrate had taken cognizance of the case after enquiry Under Section 202, Cr. P. C. in view of the provisions of Section 244; Cr. P. C., he had no jurisdiction to pass order of discharge without recording any evidence. It has been further submitted by the learned Counsel for the petitioner that Sub-section (2) of Section 245, Cr. P. C. cannot be invoked until some evidence was recorded by the Magistrate Under Section 244, Cr. P. C.

6. I have given my earnest considerations to the contentions raised before me by the learned Counsel for the petitioner. Section 244, Cr. P. C. enjoins that when, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Further Sub-section (1) of Section 245, Cr. P. C. lays down that if, upon taking all the evidence reefrred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Then comes Sub-section (2) of Section 245, Cr. P. C. which provides that nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. Needless to say that the order of taking cognizance is an ex parte order and action of taking cognizance is taken behind the back of the accused by the Magistrate purely on the complaint and the statements recorded Under Section 202, Cr. P. C. If one looks at Sub-section (2) of Section 245, Cr. P, C. then, in my opinion, the Magistrate is not precluded from discharging the accused in appropriate cases, if the accused satisfies after his appearance, that the cognizance has been wrongly taken and the charge against him is groundless. If I were to take a contrary view, then, in my opinion, Sub-section (2) of Section 245, Cr. P. C. which is a very salutary provision, would become wholly redundant. The intendment behind Sub-section (2) of Section 245, Cr. P. C. is that the complaint should not be allowed to be proceeded with on a charge which is a groundless one in order to prevent undue harassment of the accused persons. It is open to the Magistrate to discharge the accused without taking any evidence, if he is otherwise satisfied on materials that the charge is groundless one. It is true that ordinarily the Magistrate should record evidence and proceed Under Section 244, Cr., P. C. and thereafter to take further proceedings under; Sub-section (1) of Section 245, Cr, P. C. But it is equally true that in view of the language employed by the Legislature in Sub-section (2) of Section 245, Cr. P. C. there is no bar against the Magistrate in discharging the accused even without recording the evidence in an appropriate case.

7. In the present case very relevant materials were placed before the trial Magistrate showing that the charge against the accused persons was not one which could not be said to be groundless. The complainant Beharilal who was the main victim had previously filed a complaint. In that case he was called upon to lead evidence but failed to produce evidence and on the contrary he moved an application in writing that all his witnesses had turned hostile and they would not support him and, therefore, he gives up all the witnesses and does not want to lead any further proof. An affidavit of Beharilal was also noticed by the learned Magistrate wherein Beharilal had stated that the incident in question had never taken place and he was made to file a wrong complaint. In this view of the matter it is very difficult for me to reopen the case relating to an incident which is alleged to have occurred as back as on October 15, 1971 at the instance of one Bhanwarlal, who was not the main victim in the case. Learned Counsel for the petitioner has said that Bhanwarlal was also injured, but he did not take up that grievance in his complaint. His main grievance was that Beharilal was severely injured by the assemblage of five persons which was an unlawful assembly. It may be observed here that the Court may in appropriate cases in the ends of justice or to avoid abuse of the process of Court invoke its powers Under Section 482, Cr, P. C., but it is well to remember that the Court shall not invoke such powers as a matter of course. It shall only interfere Under Section 482. Cr. P. C. in cases of grave injustice and if the powers are not invoked then it would lead to abuse of process of Court. In the instant case it is otherwise. If I am to invoke my powers, then instead of promoting ends of justice it would lead to a second enquiry of the case in regard to the incident which is alleged to have taken place in the year 1971 and that too at the instance of a person who is almost a stranger, Moreover, I do not think that the ends of justice could be served by invoking powers Under Section 482, Cr. P. C. the complainant Beharilal himself having stated in writing that he had given up all the prosecution witnesses as they are not going to support him and further in view of the affidavit filed by Beharilal that no occurrance had taken place. Learned Counsel for the petitioner says that there is no bar against Bhanwarlal to file a complaint regarding an offence which relates to another person. There is no quarrel about this proposition of law, but it can not be lost sight of that in the present case Beharilal had brought the complaint on the same allegations which had been disowned. Further the order of discharge passed in the earlier complaint instituted at the instance of Beharilal was never challenged before a superior Court i.e. either before the Sessions Judge or before the High Court. In view of all these facts and circumstances, I am not inclined to invoke my inherent jurisdiction which is primarily meant to prevent the abuse of the process of the Court or grave injustice.

8. Before parting with the case I may also deal with one more contention of the learned Counsel for the petitioner that the order taking cognisance in the instant case was challenged upto the High Court by way of revisions, but the revisions were not pressed. Be that as it may, in view of very important materials brought by the accused on the record the present is not a fit case where the powers Under Section 482, Cr. P. C. should be invoked.

9. In the result the application Under Section 482 of the Code of Criminal Procedure is rejected.


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