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Sriram And Ors vs State Of Rajasthan And Anr on 10 September, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 1393/2017

1. Sriram S/o Rambabu B/c Vaishy, R/o Behind Station,
Police Station Badi, District Dholpur, Raj.
2. Nitin S/o Sriram B/c Vaishy, R/o Behind Station, Police
Station Badi, District Dholpur, Raj.
3. Neetesh S/o Sriram B/c Vaishy, R/o Behind Station, Police
Station Badi, District Dholpur, Raj.
—-Petitioners
Versus
1. State of Rajasthan through PP
2. Vasudev Giri S/o Shri Chhiddi Giri B/c Gusain, R/o Takiya
Chowk, Badi, Police Station Badi, District Dholpur.
—-Respondents

For Petitioner(s) : Mr. D.K. Garg
For Respondent(s) : Ms. Meenakshi Pareek PP

HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

-/Order/-

10/09/2018

The present petition has been filed under Section 482

Cr.P.C. to assail the order dated 4.12.2012 passed by Additional

Chief Judicial Magistrate, No.2, Badi, Dholpur whereby cognizance

of offence under Section 406 IPC was taken against the petitioners

and they were summoned to stand trial for offence under Section

406 IPC. Aggrieved against the same, the petitioners filed a

revision petition and the said revision petition was also dismissed.

Mr. D.K. Garg, learned counsel for the petitioners has

submitted that the investigating agency had filed Final Report in

negative form and thereafter, upon the protest petition preferred

by the complainant, the trial Judge proceeded under Chapter XV
(2 of 5) [CRLMP-1393/2017]

of Code of Criminal Procedure and recorded preliminary evidence

of the complainant and his witnesses. The learned counsel for the

petitioners has contended that it was incumbent for the court of

Magistrate to give reasons to differ with the opinion of the

investigating officer before taking cognizance of offence against

the petitioners.

The learned counsel for the petitioners, in support of

his arguments raised, has relied upon a judgment rendered by

Single Judge of this Court in Pooran vs. State of Rajasthan,

2006 (1) RCC 485 and another judgment rendered by Single

Judge of this Court at Principal Seat at Jodhpur in Madan Lal 2

Ors. vs. State of Rajasthan Anr., 2004 (1) RCC 266.

This Court has already noted the above contention in

Shivcharan Ors. vs. State of Rajasthan Anr., SBCRLMP

No. 4921/2018, decided on 20.8.2018. The judgment rendered

by this Court in the case of Shivcharan (supra) reads as under:-

“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
(3 of 5) [CRLMP-1393/2017]

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.”

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
(4 of 5) [CRLMP-1393/2017]

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.”

Since in the present case, court of Magistrate has

treated the protest petition as a complaint and proceeded with the
(5 of 5) [CRLMP-1393/2017]

matter under Chapter XV of Code of Criminal Procedure, it was not

obligatory on the part of Magistrate to give reasons to differ with

the report of investigating officer as Magistrate has to rely upon

the preliminary evidence led by the complainant under Section

200 Cr.P.C.

Consequently, the present petition being devoid of

merit is dismissed.

(KANWALJIT SINGH AHLUWALIA),J

Mak/-

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