Birdi Chand vs State of Rajasthan and Others

M.N. Bhandari, J.—By this criminal misc. petition, a challenge is made to the order dated 8.3.2011 passed by the Judicial Magistrate, Sikrai, Dausa so as the order dated 28.7.2014 passed by the Additional Sessions Judge, Bandikui, Dausa on a revision petition.

Learned counsel submits that on a FIR, investigation was made by the police followed by a negative final report. It was without proper investigation of the case. As many as 21 persons died apart from injuries to 25 persons, who were peacefully agitating their demands along with others. The police did not refer the post mortem reports and other material, collected during the course of investigation and, at the same time, statements of relevant witnesses have not been taken. The petitioner thus submitted protest petition raising all the issues. Learned Magistrate dismissed the protest petition while accepting negative final report. It was in ignorance of the fact that an offence under section 302 IPC apart from other offence was made out. Twenty one persons died out of the firing by the police and post mortem reports were sufficient to corroborate the allegations. The cause of death has been given therein but conveniently, it was ignored by the police and no credence to it was given by the court while dismissing the protest petition.

The learned Magistrate further failed to consider that statements of eye witnesses were not recorded by the police during the course of investigation. The petitioner thus preferred a revision petition but it was also dismissed in ignorance of the grounds raised therein. The investigation cannot be said to be proper if a material evidence is not considered which includes not only postmortem reports but other documents apart from the statements of eye witnesses. As many as 25 persons sustained injuries. Their statements were recorded but had not been considered by the police during the course of investigation. Accordingly, impugned orders may be quashed and, at the same time, negative final report may be discarded. The cognizance of the offence may be taken on the protest petition submitted by the petitioner.

Learned PP has opposed the petition.

I have considered the submissions and perused the record.

It is not in dispute that after registration of the FIR, investigation was made by the police followed by a negative final report. The petitioner made protest petition raising all the issues with a prayer to take cognizance of the offence. The perusal of the order passed by the learned Judicial Magistrate dated 8.3.2011, reveals summoning of post mortem reports and, at the same time, recorded statements of the complainant under sections 200 and 202 Cr.P.C.

In view of above, it is not only that the post mortem report was before the court for consideration of the protest petition but statement of the witnesses produced by the petitioner were also recorded and considered. Nobody prevented the petitioner to produce other witnesses to pursue the protest petition. It includes all the injured. The facts available on record show that four witnesses were produced under section 200/202 Cr.P.C. In view of above, argument of learned counsel that post mortem report was not considered by the police so as the courts below, is not correct. The post mortem report was summoned by the court thus even if it was ignored by the police while making investigation, it was taken into consideration by the court below on a protest petition. The statements of the witnesses produced by the complainant were also recorded and considered. After appreciating the statements, impugned order was passed.

The incidence took place during the course of agitation. The fact regarding death out of fire is not in dispute. The reasons and circumstances for opening of the fire has also been explained. It is not found that fire was opened with intention to commit offence under section 302 IPC but in self-defence and under the prevalent circumstances. The revisional court further found it to be on an order passed by the competent authority for firing. It was when the situation went out of control. In the facts and circumstances of the case and looking to the detailed orders of the two courts below, petition under section 482 Cr.P.C. would not be maintainable in the ordinary circumstances. The finding recorded by the court below does not refer from error, rather after proper consideration of the protest petition and the issues raised therein the impugned order was passed. The court was cautious about the issue that post mortem reports have not been considered by the police during the course of investigation. It was thus called. The order of the competent authority for firing was not produced before the court below but it was produced before the learned revisional court. It cannot be said that the impugned orders have been passed with gross abuse of process of law so as to cause interference even after dismissal of the revision petition filed by the petitioner.

In view of discussion above, I do not find that any case is made out for causing interference in the impugned orders. Hence, criminal misc. petition is dismissed.