Allowed

Girraj S/O Shri Jagannath v. State of Rajasthan

Rajasthan HC7 Oct 2023CRLAS/388/2023

Case brief

AI extract

What is this about?

The High Court set aside the trial court's order taking cognizance in an appeal regarding offences under IPC and SC/ST (POA) Act. The High Court held the trial court failed to evaluate material on the place of incident and essential offence elements, relying only on statements rather than police report grounds. Appellants were discharged.

What did the court decide?

Order dated 03.09.2021 negating final report in FIR No. 44/2019 is set aside; appellants discharged.

Girraj S/O Shri Jagannath Vs State… — Constitutional and Fundamental Rights | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Appeal (Sb) No. 388/2023

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Girraj S/o Shri Jagannath, Resident Of Village Chahara, Gangapur City, District Sawaimadhopur Rajasthan

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Jatiram S/o Shri Jagannath, Resident Of Village Chahara, Gangapur City, District Sawaimadhopur Rajasthan

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Motiram S/o Shri Jagannath, Resident Of Village Chahara, Gangapur City, District Sawaimadhopur Rajasthan

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Purshottam S/o Shri Girraj, Resident Of Village Chahara, Gangapur City, District Sawaimadhopur Rajasthan

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Pukhraj S/o Shri Girraj, Resident Of Village Chahara, Gangapur City, District Sawaimadhopur Rajasthan

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Lakhan S/o Shri Jatiram, Resident Of Village Chahara, Gangapur City, District Sawaimadhopur Rajasthan

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Asharam S/o Shri Motiram, Resident Of Village Chahara, Gangapur City, District Sawaimadhopur Rajasthan

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----Appellants

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Versus

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State Of Rajasthan, Through P.p

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Omprakash S/o Shri Lallulal, Aged About 50 Years, R/o Near Railway Power House Ward No. 7, Gangapur City, District Sawaimadhopur Rajasthan

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----Respondents

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For Appellant(s) : Mr. Manish Saini For Respondent(s) : Mr. Riyasat Ali, PP Mr. Neeraj Sharma

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Order

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07/10/2023

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Instant appeal is preferred aggrieve from order dated 03.09.2021 negating the FR in FIR No. 44/2019 registered at P.S.

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Gangapur City, Sawaimadhopur for offence under Sections 323, 341, 452, 504 IPC and 3(1)(f), 3(1)(s) of SC/ST (POA) Act.

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Learned counsel for appellants while relying upon the appeal submitted that after a long delay, a complaint was filed before the trial court and same was sent for registration of FIR under Section 156 (3) Cr.P.C. He also submitted a negative final report was proposed by the police and on protest petition, learned trial court has taken cognizance against the appellant. He submitted that while taking cognizance learned trial court has failed to notice the fact that complainant want to grab land of appellants without making any payment and just to pressurize appellants, instant case was registered. He also submitted that learned trial court while disagreeing with reasoned closure report of police did not assigned any reasons to negate the same. He also submitted that the trial court has failed to notice that alleged incident did not taken place in public place or place with public view. He also submitted that it was well established from the record that there was a serious land dispute between the parties and just to settle said dispute this case was registered, which is an abuse of process of law.

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Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant. Learned counsel for complainant submitted that police has submitted negative final report under the influence of appellants, and a protest petition was filed by complainant and after recording evidence of five witnesses, the trial court has proceeded to take cognizance. He also submitted that the incident was corroborated by neighbours

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of complainant and positive evidence was also led by complainant. He also submitted that after cognizance, even the trial has begun and also submitted copies of statement of PW-1to PW-4.

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Heard learned counsels for the parties and learned Public Prosecutor. Perused the material on record.

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On a complaint under Section 156(3) Cr.P.C., FIR No. 44/2019 was registered on 30.01.2019 for incident of 26.12.2018 at P.S. Gangapur City, District Sawai Madhopur. After investigation police has proposed negative final report on the ground that there is land dispute between the parties as land of accused party was in the possession of complainant and to settle the dispute accused party had asked for money but complainant registered this case to avoid payment.

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After this negative final report, a protest petition was filed by the complainant and statement of respondent No. 2 (Om Prakash) under Section 200 Cr.P.C., Neeraj, Hukam Chand, Hemant Kumar and Lallu Lal and under Section 202 Cr.P.C. were recorded before passing the impugned order.

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In criminal complaint field after a delay it was alleged that appellants came to his house on 26.12.2018 and demanded Rs. 10 lacs and further abused complainant with casteist slur and used criminal force against complainant and his father. The trial court took cognizance under Section 504 IPC and Section 3(1)(r)(s) SC/ST (POA) Act. The trial court was well aware about the fact that the place of incident was house of complainant and already a

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dispute between the parties relating to land was on record. Learned trial court has also noticed the fact that the complainant has registered the case exaggerating the facts.

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In case of Gorgie Pentaiah Vs. State of AP : (2008) 12 SCC 531, Hon’ble Supreme Court while considering the cognizance order under SC/ST (POA) Act and referring the judgment of State of Haryana Vs. Bhajanlal (1992) Suppl. (1) SCC 335 and other judgments observed that the authority of court exist for advancement of justice and if any abuse of process leading to injustice is brought to the notice of court then the court would be justified in preventing justice.

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In case of Asmathunnisa Vs. State of AP : (2011) 11 SCC 259, Hon’ble Supreme Court has considered the cognizance under SC/ST (POA) Act and after considering law point observed that the words used in “in any place within public view” means that public must view the person being insulted for which he must be present and no evidence on the allegations in the said section can be attracted if person is not present. In case of Swaran Singh and Ors. vs. State Through Standing Council and Ors.: (2008) 8 SCC 435, Hon’ble Supreme Court has considered the cognizance under the SC/ST (POA) Act Act and further explained expression “place within public view”.

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In case of Hitesh Verma Vs. State of Uttrakhand and Anr.: (2020) 10 SCC 710, a three Judge Bench of Hon’ble Supreme Court while considering the expression “place in public view” and “public place” observed that if an offence is committed

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outside the building can be seen by someone from the road or lane outside the boundary wall then it would be certainly be a place within public view but is any remark is made inside the building but some of the members of public are there (not merely relatives or friends) then it would not be an offence since it is not in public view.

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Recently Hon’ble Supreme Court in case of Ramesh vs. State of UP (2023) SCC Online SC 668 laid down that the essential ingredients of the offence of intentional insult under SC/ST (POA) Act or 504 IPC required to be present before considering for cognizance. It was further held that before taking cognizance of the offence, the court should determine whether the material establishes the case under SC/ST (POA) Act.

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We have considered the essential requirement for taking cognizance under Section 504 IPC and offence under Section 3 of SC/ST (POA) Act, it is necessary for every trial court to consider the material and evaluate the pre-trial evidence so as to proceed further. Here in this case it appears that learned trial court just relied upon the statement recorded before the Court and proceeded to take cognizance on the ground that P.S. Gangapur City has already filed a complaint under Sections 107 and 116 (3) of Cr.P.C. Learned Trial court was duty bound to consider Chapter VIII of Cr.P.C. particularly proceedings under Sections 107 and 116 Cr.P.C. before presuming that same was sufficient for prima facie case. It appears that the trial court instead of looking at

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material just swayed by the fact that a complaint under Section 107 and 116 (3) Cr.P.C. was filed against the appellants.

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Therefore without considering the fact whether the incident has taken place at public place or in public view or not and also the fact that the incident was in fact happened or not, the trial court just proceeded to take cognizance. The order of cognizance is not based upon any of the material on record collected by the police. Even the trial court has failed to consider the grounds on which negative FIR was proposed. Further, it has failed to consider whether there was essential elements to constitute offence were available or not. Therefore, the order of cognizance passed by learned trial court is without any substantial basis hence liable to be interfered.

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As a result of above, order dated 03.09.2021 negating the FR in FIR No. 44/2019 registered at P.S. Gangapur City, Sawaimadhopur for offence under Sections 323, 341, 452, 504 IPC and 3(1)(f) and 3(1)(s) of SC/ST (POA) Act is set aside and appellants are discharged.

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Accordingly, present appeal is allowed.

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Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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PREETI VALECHA /293

Girraj S/O Shri Jagannath v. State of Rajasthan

Case brief

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Girraj S/O Shri Jagannath v. State of Rajasthan

Case brief

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