Allowed

Prabhuram Son of Maguram v. State of Rajasthan

Rajasthan HC7 Oct 2023CRLAS/502/2023

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, setting aside the Trial Court's order taking cognizance against appellants. The Court held the Trial Court acted mechanically, failing to consider the police report excluding appellants and the necessity of proving the offence occurred in public view under the SC/ST Act. The matter was remanded for fresh consideration.

What did the court decide?

The order dated 29.10.2022 setting aside the impugned order was allowed. The matter was remanded to the Trial Court for fresh consideration after considering the entire material on record and giving o

Prabhuram Son of Maguram Vs State of… — Civil Procedure and Limitation | 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. 502/2023

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Prabhuram Son Of Maguram, Aged About 35 Years, Resident Of Devnagar Khetri Distt. Jhunjhunu Police Station Khetri Distt. Jhunjhunu (Raj)

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Sitaram Son Of Syopal, Aged About 35 Years, Resident Of

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Devnagar Khetri Distt. Jhunjhunu Police Station Khetri Distt. Jhunjhunu Raj

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Mularam Son Of Maguram, Aged About 35 Years, Resident Of Devnagar Khetri Distt. Jhunjhunu Police Station Khetri Distt. Jhunjhunu Raj

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Subhash Son Of Prabhuram, Aged About 35 Years, Resident Of Devnagar Khetri Distt. Jhunjhunu Police Station Khetri Distt Jhunjhunu Raj

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----Appellants

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Versus

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State Of Rajasthan, Through The Public Prosecutor 2. Mahipal S/o Jawahar Lal, R/o Badalwas, Khetri Jhunjhunu Rajasthan

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----Respondents

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For Appellant(s) : Mr. Rohitash Kumar Saini. For Respondent(s) : Mr. Neeraj Kumar Sharma. Mr. Riyasat Ali, P.P.

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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 by appellants-accused aggrieved from order dated 29.10.2022 in Sessions Case No. 113/2022 arising out of FIR No. 43/2022, P.S. Khetdi, District - Jhunjhunu, whereby learned Trial Court on an application under Section 190 of

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Cr.P.C. preferred by complainant, proceeded to take cognizance against the appellants under Sections 323, 341, 325 read with Section 149 IPC and Sections 3(1)(s) and 3(2)(va) of SC/ST (POA) Act and further called the appellants through summons.

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Learned counsel for the appellants has submitted that the respondent-complainant Mahipal on dated 24.01.2022 filed an FIR for incident allegedly happened in the evening of 23.01.2022, which was investigated by the police and after investigation, police has filed charge-sheet against Rameshwar Lal and Ramswaroop under Sections 341, 323, 325/34 and Sections 3(1)(s) and 3(2) (va) of SC/ST (POA) Act. During pendency of this Sessions Case, an application under Section 190 Cr.P.C. was filed by the complainant, wherein the Trial Court proceeded to pass order on cognizance against the present appellants. He also submitted that initially order of cognizance was passed against Rameshwar Lal and Ramswroop, but subsequently without resorting to power under Section 319 of Cr.P.C., the Trial Court has passed order under Section 190 Cr.P.C. He also submitted that no specific reasons were assigned for disagreement with the reasoning of police after investigation with respect to present appellants. He also submitted that the entire material on record collected by police indicate that the incident was neither happened in public place nor it is in public view, therefore, the offence under Section 3 of SC/ST (POA) Act is not made out. He also submitted that the Trial Court has not considered the fact that the independent witnesses like Vijay Singh, Shivchand, Dharmendra, Shankerlal, Dharampal, Balulal and Vinod Das have not supported the version

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of complainant. He specifically referred the statement of Ramswaroop (Constable) to submit that on an information when police reached on spot just after the incident then the complainant did not filed any report on time rather he sought time and after consultation, he lodged this report. He also submitted that the entire incident is false and fabricated and without any basis, learned Trial Court has taken cognizance against the petitionersappellants.

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He specifically relied upon judgment of Ramesh Chandra Vaishya v. The State of Uttar Pradesh & Anr.: 2023 SCC OnLine SC 668 and order of coordinate Bench of this Court in the case of Niraj Goyal & Anr. v. State of Raj. & Anr.: S.B. Criminal Appeal No. 399/2023 (Order dated 13.04.2023) .

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Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for the respondent-complainant No.2.

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Learned counsel for the respondent-complainant No.2 while referring the injury report and statement of complainant-injured, has submitted that sufficient material is available on record so as to take cognizance against the present appellants. He also submitted that no cognizance order was passed in the matter prior to impugned order. He specifically referred the judgment of Hon'ble Supreme Court in the case of Nahar Singh v. The State of Uttar Pradesh & Anr.: Criminal Appeal No. 443 of 2022 , wherein Hon'ble Supreme Court has considered the judgments of Constitution Bench in case of Hardeep singh v. State of Punjab

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& Ors.: (2014) 3 SCC 92 and Dharam Pal & Ors. v. State of

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Haryana & Anr.: (2014) 3 SCC 306 .

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

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A perusal of record indicated that for incident of 23.01.2022, report was submitted to police on 24.01.2022 and after investigation, police has recommended charge-sheet against Rameshwar Lal and Ramswaroop, but did not found involvement of present appellants. The reasons assigned by police indicate that the parties are having previous animosity due to land dispute, the reasons were specific. In FIR itself, the incident registered through FIR No. 729/2020 for incident of 16.12.2020 was also mentioned. A copy of FIR No. 729/2020 is available on record and we have gone through the same. The facts narrated in FIR No. 729/2020 and in present FIR, are almost same, but the Trial Court did not considered the aforesaid.

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The police only recommended charge-sheet against two persons, but on an application of complainant, the Trial Court has proceeded to take cognizance against under Section 190 Cr.P.C. though same has to be read as 193 Cr.P.C. In this case, the Trial Court did not assigned any reason to contradict the reasoning of police for not forwarding these four appellants as an accused. The FIR and the statement of injured indicate that two persons were named as eye-witnesses and they were Brijmohan and Sardararam, who were closed-blood relatives of injured. Except these two, no other witness was named by complainant. Statements of some witnesses were recorded by police and

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referred by the learned counsel for the appellants, but the Trial Court has not considered any of them forwarded by police in support of police report.

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As regard to power of cognizance under Section 190 or 193 Cr.P.C. is concerned, same is no more res integra after judgment of Hon'ble Supreme Court in the case of Dharam Pal & Ors. v. State of Haryana & Anr. (supra) and Hardeep singh v. State of Punjab & Ors. (supra) and both were considered by Hon'ble Supreme Court in the case of Nahar Singh v. The State of Uttar

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Pradesh & Anr. (supra) .

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We have gone through the law settled by Hon'ble Supreme Court in aforesaid cases. 11. Having considered the facts and material available on record, the fact is quite clear that on an information when Police Constable Ramswaroop (C.No.797, O.P. Basai Camp Mehada, P.S. Khetadi) approached the complainant in the evening of 23.01.2022 then complainant refused to lodge report and the statement of this Constable was recorded by the IO, but learned trial Court did not relied upon the same.

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In the case of Ramesh Chandra Vaishya (supra) Hon'ble Supreme Court after considering the judgment in the case of Hitesh Verma v. State of Uttarakhand : (2020) 10 SCC 710

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and the provision under Section 3 of SC/ST (POA) Act held that to attract Section 3 of SC/ST (POA) Act, the basic ingredient "in any place within public view" is required to be established.

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Herein this case, the learned Trial Court without considering the provisions of law have proceeded to take cognizance on the

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application of complainant without considering the fact that the basic ingredients of offence were available or not. It appears that the learned Trial Court has passed the order in most casual and mechanical manner without considering entire material on record, therefore, it is appropriate to set aside the order and remand the matter to the Trial Court for fresh consideration.

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As a result, the appeal preferred by the appellants against the order dated 29.10.2022, is hereby allowed and the order dated 29.10.2022 is set aside. The matter is remanded back to the learned Trial Court for passing an appropriate order after considering the material available on record and opportunity of hearing to the complainant and the Public Prosecutor.

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(ASHOK KUMAR JAIN),J

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PKS/294

Prabhuram Son of Maguram v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Prabhuram Son of Maguram v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

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