State Of Rajasthan, Through P.p v. Magan S/o

Judgment

2. State Of Rajasthan, Through P.p. Versus Magan S/o Shri Bhola Ram Aged About 25 Years, R/o Hamirpul, Kacchi Basti, Bajariya Sawai Madhopur Raj. ----Respondents Connected With S.B. Criminal Appeal (Sb) No. 865/2020 Azhar S/o Anwar Husain, R/o Near Ranthambor Circle Sawai Madhopur Raj. Asrar S/o Anwar Husain, R/o Near Ranthambor Circle Sawai Madhopur Raj. Jabunisha W/o Anwar Husain, R/o Near Ranthambor Circle Sawai Madhopur Raj. ----Appellants State Of Rajasthan, Through Pp Versus

Magan S/o Shri Bhola Ram, Aged About 25 Years, R/o Hamirpul Kacchi Basti Bajariya Sawai Madhopur Raj. ----Respondents For Appellant(s) : Mr. Rajveer Singh For Respondent(s) : Mr. Vijay Singh Yadav, PP Mr. Shashi Bhushan Gupta HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 19/05/2025

1. These two appeals were preferred by appellant(s) accused aggrieved from order of cognizance dated 03.06.2019 in complaint case no. 02/2017 passed by learned Special Judge, SC/ST (POA) Act, Sawai Madhopur. Both the appeals were filed aggrieved from common order of cognizance, therefore, we are deciding both the appeals by a common order. [2025:RJ-JP:22880] (2 of 6) [CRLAS-79/2020]

2. Learned counsel for appellants while referring the facts of the case submitted that respondent no.2 complainant Magan has filed a complainant before learned Chief Judicial Magistrate about the incident of 22.04.2016 at Hotel Maharaja Palace owned by Bharatlal. He also submitted that filing complaint, the statement of complainant was recorded under Section 200 along with two other witnesses Raj Kumar and Bharatlal under Section 202 Cr.P.C. He also submitted that the trial court without seeking a fact verification report from police and further independent enquiry in a cognizable matter has straight away taken cognizance against the appellants under the SC/ST (POA) Act, which is contrary to settled norms of taking cognizance by any court. He also referred the animosity between appellants and owner of hotel Bharatlal and submitted that on similar facts Bharatlal has also registered a FIR on basis of a complaint wherein the appellants were acquitted after full trial by same court. He also submitted that after acquittal, Bharatlal has filed a second FIR and same is annexed in current revision petition. He also submitted that respondent no.2 complainant is an employee of Bharatlal and at the instigation of Bharatlal a false complaint is filed against the appellants. He submitted that the statement of Magan (complainant) was recorded in earlier case registered by Bharatlal on 20.09.2017 and after the acquittal another complaint is filed just to harass the appellants accused. He submitted that process adopted by the trial court is neither a healthy practice nor a legal process, therefore impugned order is bad. At last, he submitted that the filing of criminal complaint and order of cognizance is an abuse of process of law. [2025:RJ-JP:22880] (3 of 6) [CRLAS-79/2020]

3. Aforesaid contentions were opposed by learned Public Prosecutor and learned counsel for complainant. Learned counsel for complainant has submitted that the matter can be considered after evidence during trial and the appellants may participate in the process. He submitted that at the stage of cognizance only prima facie case is required to be seen.

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

5. On the basis of complaint under the offence of IPC and SC/ST (POA) Act filed by complainant Maganlal against all four appellants learned Chief Judicial Magistrate has recorded statement of Maganlal under Section 200 of Cr.P.C. and Raj Kumar and Bharatlal under Section 202 of Cr.P.C. Afterwards learned Special Judge, SC/ST (POA) Act has taken cognizance against the appellants under Sections 341, 323, 504/34 IPC and 3(i)(s) and 3(ii)(va) of SC/ST (POA) Act.

6. A perusal of material also indicate that after filing of complaint, the matter was registered directly as complainant case and statement under Section 200 and 202 Cr.P.C. were recorded by learned Chief Judicial Magistrate but the matter was not sent for registration of FIR. Though, a cognizable offence was alleged by complainant in a complaint filed before the trial court. After recording the evidence, no efforts were made to sent the matter for enquiry by police, and there is no enquiry report.

7. The judgment dated 12.07.2019 in sessions case no. 83/2016 passed by learned Special Judge, SC/ST (POA) Act, Sawai Madhopur clearly indicate that Bharatlal registered a FIR no. 195/2016 at P.S. Kotwali, District Sawai Madhopur against five [2025:RJ-JP:22880] (4 of 6) [CRLAS-79/2020] persons,residing in neighbourhood of his hotel Maharaja Palace and the persons named were Anwar Hussain, Asrar, Azhar, Jabunisha and Begumnisha. It is also apparent from the judgment dated 12.07.2019 that the incident is of 20.04.2016 and the statement of Magan was recorded by PW-1 in sessions case no. 83/2016, as an eye witness. 8 A perusal of judgment dated 12.07.2019 in sessions case no. 83/2016 clearly indicate that that the charges were not proved and the accused Anwar and Azhar, who faced the trial were acquitted by Special Court from charges of IPC and SC/ST (POA) Act, after recording the evidence of prosecution.

9. A perusal of process adopted by the trial court clearly indicate that only on basis one sided version, an order of cognizance was passed though in case of cognizance it is necessary that the trial court must apply its own mind. Normally, after recording statement under Section 200 and 202 Cr.P.C. the trial court ought to have exercised an authority under Section 202 of Cr.P.C. for independent inquiry, so as to verify the ex-parte version of complainant and his witness. A process of cognizance is not a mechanical exercise rather there must be a fact finding enquiry before calling any person to face trial. The facts in the complaint or on oath statement of complainant and other witness must be verified before issuing any process and Section 204 of Cr.P.C. The Magistrate is duty bound to see whether allegation made in complaint sufficient to proceed against accused though merits of the case is not required to be seen during enquiry at this stage. [2025:RJ-JP:22880] (5 of 6) [CRLAS-79/2020]

10. In case of M/S. Pepsi Foods Ltd. & Anr vs Special Judicial Magistrate & Ors (1998) 5 SCC 749, Hon’ble Supreme Court has laid down the duty of the Magistrate while passing summoning order in a complaint case in following manner: “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 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.”

11. In case of Harshendra Kumar D vs Rebatilata Koley, 2011 Cr.L.J 1626 (SC), hon’ble Supreme Court has held that criminal prosecution is a serious matter and it affects the liberty of a person and no greater damage can be done to the reputation of a person then dragging him in a criminal case. In case of M/S Ghcl Employees Stock Option Trust vs M/S India Infoline Limited AIR 2013 SC 1433 again it was held that the summoning order in a complaint case must reflect application of mind. [2025:RJ-JP:22880] (6 of 6) [CRLAS-79/2020]

13. Having considered the entirety of facts and circumstances of the case, it is apparent that on the basis of incident dated

20.04.2016 FIR no. 195/2016 was registered through complaint under Section 156(3) of Cr.P.C. by Bharatlal at P.S. Kotwali, Sawai Madhopur wherein appellant accused Anwar and Azhar were acquitted by Special Court on 12.07.2019. On similar facts a criminal complaint was filed by one of the Employee of Bharatlal for incident of 22.04.2016 against same persons wherein the special court has taken cognizance on 03.06.2019 without resorting to any independent enquiry under Section 202 of Cr.P.C. It is also notable fact Maganlal is an eye-witness in FIR no. 195/2016 registered by Bharatlal whereas in his complaint, Bharatlal is an eye-witness.

14. Aforesaid clearly indicate that this is an abuse of process of law and the facts narrated in the evidence are not sufficient to constitute an offence as alleged by complainant, therefore, the trial court has committed serious error while taking cognizance against the appellants. Thus, the appeals are liable to be allowed.

15. In view of discussion made hereinabove, both the criminal appeals are hereby allowed and the order of cognizance date

03.06.2019 is hereby set aside.

16. As a result, a criminal complaint filed by respondent complainant Magan is hereby rejected and the appellants are discharged.

17. Misc. application, if any, stands disposed of. CHETNA BEHRANI /122-123 (ASHOK KUMAR JAIN),J