Judgment:
S.N. Deedwania, J.
1. This petition under Section 482, Cr. PC is against the order dated February 2,1978 of learned Additional Sessions Judge, Sessions, dismissing the revision of the petitioner against the order dated December 24, 1977 of learned Chief Judicial Magistrate, Desuri.
2. Briefly stated the facts are these. On 13-9-76, Smt. Badami wife of Hanumansingh lodged a report at police station, Rani, at about 8 30 pm., with these allegations that she was Head Mistress in the Government Primary School, Singarla and on 11-9 76 in the evening, Ramsingh started abusing her and her son on the chabutra of Cbarbhuja. Some people came and intervened and Ramsingh went away. In the night, Mst. Badami and her son Rajcndra Sirgh were sleeping on the first floor of the house. Ramnsing, Dhan Singh, Samandarsingb, Devisingh and Mehtabsingh committed the trespass of her house, she and her son awoke. They saw the petitioners and Devisingh and Mebtabsingh variously armed. They threatened to beat her. Bhikhidevi sister of Badamidevi also came there. The petitioners and the aforesaid two persons then escaped The police registered the case and after due investigation a final report i e. report under Section 169, Cr. P.O. was filed in the court of the Magistrate.
3. The learned Magistrate disagreed with the report and took cognizance against the petitioners only. It is not clear from the order that under what clause of Section. 190, Cr. P.G. the cognizance was taken. The police gave a final report on the ground that when the SHO reinvestigated the case, witnesses Narpat, Poonam expressed ignorance about the incident. Mst. Bhikhidevi also changed her statement and stated that she did not see the incident. Some other witnesses namely Jawaharsingh, Kaloosingh, Keekji also expressed their ignorance of the incident Mst. Badamibai in her first information report implicated the five accused in the beating However, when she was examined by the S.I. just after the report, she stated that only Ramsingh, Dhan Singh and Samandarsingh committed the trespass and gave beating to her and to her son. Bhikhidevi also changed the statement before the SHO and simply stated that she saw 3-4 persons escaping from the house and did not see any beating. The learned Sessions Judge while rejecting the revision endorsed the view of the learned Magistrate that the witnesses in their police statement recorded on 14-9-76 had implicated the three petitioners, though when these witnessed were re examined by the SHO on 30-11-74 they resiled from their earlier statements. Therefore, on the basis of the earlier statements of the witnesses,the Magistrate was justified in taking cognizance.
4. I have heard the learned Counsel for the petitioners and Mr. S L. Mardia, learned Public Prosecutor for the State and perused the record of the case carefully.
5. Normally, I would not have interfered in this petition under my inherent power because the petitioners had a remedy by way of revision, which they availed unsuccessfully. However, I propose to interfere because the learned Magistrate and learned Additional Sessions Judge had approached the case from a totally wrong angle When the witness resiled from their statements dated September 14,1976 it could not be said that there was any material before the Magistrate on the basis of which, he could derive knowledge of the incident. Moreover, it appears that the Magistrate had not taken cognizance under Section 190(1)(c). This is rather unfortunate. This Court relying upon the observation of the case of Abbinandan Jha and Ors. v. Dinesh Mishra : 1968CriLJ97 observed in Raju alias Rajandrasingh v The State of Rajasthan 1979 RLW 67 that the Magistrate in such cases could either proceed under Section 190(1)(c) or treat the protest petition as private complaint and proceed under Section 190(1)(a), but could not proceed under Section 110(1)(b), Cr P.C. Admittedly, the Magistrate, did not proceed under Section 190(1)(a) or 190(1)(c) It may be observed that whenever, cogni(sic)ance of case is taken under Section 190(1)(c), it should be so specifically stated and then the procedure for disposal of such case should be followed, which would be the same as that of a private complaint. In these circumstances, there was no worth-while material before the Magistrate to take the cognizance on his own knowledge under Section 190(1)(c). I propose to quash 'he order under my inherent power as it amounts the gross abuse of the process of the court. The Magistrate in any case, could not have taken cognizance under Section 190(1)(b) Cr PC The Magistrate, is, however, free to treat the protest petition as complaint and then proceed according to law.
6. With the aforesaid observations, I accept the petition and set aside the order of learned Additional Sessions Judge Sirohi dated February 2,1979 and learned Chief Judicial Magistrate, Desuri, dated December 24,1977.