Allowed

Dhunkalram S/O Nathuram v. State of Rajasthan

Rajasthan HC17 Oct 2024CRLAS/1836/2023

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and set aside the order of cognizance passed by the Trial Court. The Court held that the Trial Court erred in taking cognizance after rejecting a detailed negative closure report without assigning specific reasons, ignoring inconsistencies in evidence and the lack of corroboration.

What did the court decide?

The order of cognizance dated 20.05.2023 is set aside; appellants-accused are discharged under relevant IPC sections and SC/ST (POA) Act.

Dhunkalram S/O Nathuram Vs State of Rajasthan — Criminal Trial and Appeal | Rajasthan HC (2024)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Appeal (Sb) No. 1836/2023

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Dhunkalram S/o Nathuram, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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Pokhar Ram Son Of Nathuram, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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Sitaram Son Of Dhunkalram, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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Rajendra Son Of Dhunkalram, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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Subhash Son Of Dhunkalram, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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Sanwarmal Son Of Pokhar Ram, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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Gopal Son Of Pappu Ram, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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Ranjeet @ Norang Son Of Madanlal, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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Sita Devi Wife Of Sataram, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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Chunka Devi Wife Of Rajendra, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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Vimla Wife Of Pappu, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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Rameshwari Wife Of Madan, Resident Of Gram Nangal, Police Station Ranoli, District Sikar, Rajasthan

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----Appellants

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Versus

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State Of Rajasthan, Through Public Prosecutor

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Kaluram Son Of Kanaram, Resident Of Naagal, Thana Ranoli, District Sikar, Rajasthan

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----Respondents

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For Appellant(s)	: Mr. Mr.	Vikram Singh Ganesh Dutt Gautam
For Respondent(s)	: Mr.	Mahaveer Singh Choudhary
	Mr.	Onkar Singh Rajpurohit,PP

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HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

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Judgment / Order

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17/10/2024

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Instant appeal is preferred by appellants-accused aggrieved from order dated 20.05.2023 in a matter arising out of FIR No.270/2014, P.S. Ranoli, District Sikar whereby learned Special Judge, SC/ST (POA) Act Cases, Sikar has rejected the final closure report (FR) submitted by police, after investigation and passed an order of cognizance under Sections 147, 148, 149, 341, 323, 427, 336, 447 IPC and section 3(1)(x) of SC/ST (POA) Act, against appellants and summoned them through warrant of arrest. 2. Learned counsel for appellants while relying upon grounds of appeal submitted that there was a dispute relating to pathway between complainant party and them for which a civil suit was filed and same was decreed on 30.09.2022 in favour of appellants. He further submitted that the police after detailed investigation has submitted a closure report but the Trial Court merely on basis of statement under Sections 200 of Cr.P.C. has discarded reasoned police report without assigning any specific reason. He submits that as per police report no such incident was ever taken place between the parties and a false case was registered by respondent-complainant so as to pressurize appellants.

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Aforesaid contentions were opposed by learned counsel for respondent-complainant and he submits that there were sufficient evidence on record and the Trial Court on the basis of on oath statement has considered the case of respondent. He also submits

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that the appellants have committed offence and the defence can only be considered during trial.

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

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A criminal complaint filed by respondent no.2-Kaluram before learned Additional Judicial Magistrate No.1, Sikar was forwarded under Section 156(3) of Cr.P.C. to P.S. Ranoli. On the basis of criminal complaint, FIR No.270/2014 was registered on 13.10.2014 for the incident of 24.08.2014. After investigation, police has filed negative closure report (FR) on the ground that the allegations were false and baseless. A fact was also mentioned that one of the accused-Dhukal Ram has also filed FIR No.233/2014 under Sections 447, 341, 327, 336, 354, 354B and 323 IPC on 02.09.2024 for alleged incident of 21.08.2014 and 23.08.2014, wherein also police has filed negative closure report (FR) after investigation.

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A perusal of material placed on record reflect that the complainant-Kalu Ram is a non SC/ST person and no provision under the SC/ST (POA) Act can be attracted for any offence committed against him. A perusal of complaint indicate that the complainant alleged that the driver Jhabarmal Balai was abused with casteist slur and complaint under the SC/ST (POA) Act was filed. The statement of driver-Jhabarmal was recorded under Section 161 Cr.P.C. on 15.11.2014. In his statement to the Investigating Officer, Jhabarmal has not corroborated the allegations made in the complaint. He has not supported the version of complainant-Kaluram. Thus, a person against whom the

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appellants have committed an offence punishable under the SC/ST (POA) Act, has not supported the version of complainant.

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After submission of FR, complainant-Kalu Ram examined himself under Section 200 Cr.P.C. but no other witness was produced and examined under Section 202 Cr.P.C. A perusal of material on record reflect that one of the alleged victim Jhabarmal has not corroborated the allegations made in complainant. 8. A perusal of entire material clearly reflect that there is no evidence or material to take cognizance under the SC/ST (POA) Act, therefore, the Trial Court has not only overlooked the record but also committed a serious error while passing an order of cognizance under the SC/ST (POA) Act, as well. 9. We have considered the evidence placed on record, particularly Kalu Ram, Vimla, Chandri Devi, Vijaypal recorded by police. We have also gone through the statement of other witnesses recorded by police under Section 161 Cr.P.C. Also considered the statement of complainant Kalu Ram recorded on 20.05.2017 under Section 200 Cr.P.C. and compared these statements, with the statements of witnesses recorded by police under Section 161 of Cr.P.C. There were several inconsistent circumstances mentioned therein but unnoticed by the Trial Court while considering issue of cognizance.

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A perusal of judgment and decree dated 30.09.2022 in Civil Suit No.98/2014 passed by learned Senior Civil Judge, also indicate that a decree was passed in favour of Dhukal Ram (appellant no.1) in civil suit instituted on 03.09.2014. We have also gone through the order dated 29.10.2018, in Civil Misc. Case No.115/2014, 131/2014 and 148/2017 passed by learned Senior

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Civil Judge, Dantaramgarh, District Sikar wherein respondentcomplainant-Kalu Ram was found guilty.

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Herein police has filed a negative report assigning detailed reasons and the Trial Court was required to meticulously consider the report including statement of witnesses of both the parties before passing an order of cognizance. The statement recorded by the police were not specifically mentioned by the Trial Court while passing the order, which means the Trial Court has passed an order in casual manner referring the overall statements.

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Before passing an order of cognizance on a complaint case (including on protest petition) it is necessary for the Trial Court to consider the principle of law laid down in case of M/S. Pepsi Foods Ltd. & Anr vs Special Judicial Magistrate & Ors (1998) 5 SCC 749 wherein Hon’ble Supreme Court has laid down duty of the Magistrate while passing summoning order in a complaint case as under:

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Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not

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that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

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In case of Bhushan Kumar & Anr vs State(Nct Of Delhi) & Anr. 2012 (5) SCC 424, Nupur Talwar vs CBI & Anr AIR 2012 SC 291, Kanti Bhadra Shah And Anr vs State Of West Bengal 2000 (1) SCC 722, Hon’ble Supreme Court after considering requirement before taking cognizance has observed that at the stage of cognizance detailed reasons are not required, but certainly the Trial Court is required to consider all material placed and forwarded with report.

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In case of M/s GHCL Employees Stock Option Trust Vs. M/s India Infoline Limited AIR 2013 SC 1433 and Sunil Bharti Mittal vs CBI AIR 2015 SC 923 (Three Judge Bench), Hon’ble Supreme Court observed that order of cognizance must reflect application of mind, though detailed reasons are not required.

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In case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 (3) SCC 736 Hon’ble Supreme Court narrated that in following type of cases, wherein an order of issuing process can be set aside and these are as under:

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(1) Where the allegations made in the complaint or the statements of the witnesses

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recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

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Further in case of Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [1988(1) SCC 692]; State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [1995 (6) SCC 194]; Central Bureau of Investigation v. Duncans Agro Industries Ltd. [1996 (5) SCC 591]; State of Bihar v. Rajendra Agrawalla [1996 (8) SCC 164]; Rajesh Bajaj v. State NCT of Delhi [1999 (3) SCC 259]; Medchl Chemicals & Pharma (P) Ltd. v. Biological E.Ltd. [2000 (3) SCC 269]; Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168]; M.Krishnan v. Vijay Singh [2001(8) SCC 645]; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque

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[2005(1) SCC 122], Hon’ble Supreme Court summarised the principles while quashing a complaint. The principles are as under: (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

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(ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

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(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which

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are absolutely necessary for making out the offence.

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(v) A given set of facts may make out:

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(a) purely a civil wrong; or

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(b) purely a criminal offence; or

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(c) a civil wrong as also a criminal offence.

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A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

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The reasons assigned by Trial Court, particularly in light of final closure report submitted by police are not convincing. The Trial Court has also ignored that there was a substantial delay in reporting matter to the police. The material forwarded by police neither verified the incident nor established involvement of appellants. Except on oath statement of complainant-Kaluram under Section 200 Cr.P.C., there are no grounds to take cognizance after rejecting a police report.

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Therefore, the Trial Court has committed serious error while passing an order of cognizance in cavalier manner in a case wherein the parties are having dispute of pathway and a previous FIR for almost similar incident was also registered by opposite party (present appellant).

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In view of aforesaid, the criminal appeal preferred by appellants is hereby allowed and order of cognizance dated 20.05.2023 is hereby set aside. The appellants-accused are

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discharged from charge under Sections 341, 323, 447, 327, 354, 452, 428 IPC and Section 3 (1) (x) of SC/ST (POA) Act.

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A copy of this order be placed before Hon’ble The Chief Justice through Registrar General. A copy of this order be also sent to the Rajasthan Judicial Academy.

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(ASHOK KUMAR JAIN),J

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Arun/69

Dhunkalram S/O Nathuram v. State of Rajasthan

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Dhunkalram S/O Nathuram v. State of Rajasthan

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