Gopi Chand and Others vs Khinwa Ram

Y.R. Meena, J.—This Miscellaneous Petition u/s 482, Cr.P.C. is directed against the Judgment of the learned Munsif & Judicial Magistrate, Rajgarh District-Churu dated 9.1.85.

The main grievance of the petitioners is that the learned Magistrate has wrongly taken the cognisance against them.

The relevant facts, in short, are that the petitioner No. 1 is a complainant against Khuiwaram non-petitioner in FIR Case No. 65 of 1983 dated 24.9.1983. The petitioner No. 2 is Sarpunch of Gram Panchayat. The petitioner No. 3 is witness in a criminal case. The petitioner No. 4 is the brother of Gopichand. The petitioners No. 5 and 6 are the nephews of Gopichand and the petitioner No. 6 is also Government Servant working as Deputy Vaidya in the Government of Rajasthan.

The petitioner No. 1 Gopichand filed a first information report at the police station Taranagar on 24.9.83 to the effect that his one camel and Bull (Sandh) were stolen away. The SHO police station Taranagar registered a case for the offence u/s 397, IPC against the non-petitioner. During investigation, the police came and asked the petitioner No. 2 Sarpanch of the village to accompany him as well as ordered the above petitioners except petitioner No. 6 to accompany him. The petitioners, as per direction of the SHO accompanied him to the field of Khinwaram along with some other constables for pointing out one stolen property. During investigation of the said criminal case, the stolen property was recovered and challan was filed for the offence u/s 397, IPC in the court of Munsif & Judicial Magistrate, Rajgarh. Thereafter, the non-petitioner presented a complaint before the learned Magistrate, Churu u/s 447, 427 & 147 IPC.

Being dis-satisfied with the order of the learned Munsif & Judicial Magistrate, Rajgarh dated 9.1.85 the petitioners preferred this revision u/s 397, Cr.P.C. before the learned Sessions Judge, Churu. The learned Judge quashed the proceedings against Rugharam and rest was rejected by order dated 25.2.85.

Aggrieved by the orders of both the courts below, the accused petitioners preferred this petition u/s 482, Cr.P.C. before this Court.

Mr. K.N. Joshi, learned Counsel for the petitioners submitted that no case is made out against the accused petitioners for cognisance, therefore, the orders of the courts below should be set aside. The facts are not in dispute that the learned Magistrate has taken the cognisance against the petitioners and for that, the revision petition was filed before the learned Sessions Judge and again, the petitioners came before this Court u/s 482. Cr.P.C. In the recent decision of the Supreme Court in Rajan Kumar Machananda v. State of Karnataka 1990 S.C.C. (Cri.) 537, the following view has been taken as under:

The question for consideration is as to whether the bar u/s 397(3) Cr.P.C. should have been taken note of to reject the revision at the instance of the State Government or action taken by the High Court in exercise of its inherent power has to be sustained. It is not disputed by counsel appearing for the State that the move before the High Court was really on application for revision of the order of the Magistrate releasing the truck. That is exactly what is prohibited u/s 397(3) Cr.P.C. Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397(3) of the Code could be labeled as one u/s 482. We are satisfied that this is a case where the High Court had no jurisdiction to entertain the revision. The appeal is allowed and we set aside the order of the High Court. The order of the Magistrate as affirmed by the Sessions Judge is upheld.

Following the view taken by their Lordships of the Supreme Court in Rajan Kumar Machananda''s case (supra), the application u/s 482, Cr.P.C. does not lie against the order of the learned Sessions Judge in revision.

In the result, I find no force in this petition and the action of the authorities below is confirmed.