Judgment:
B.R. Arora, J.
1. This miscellaneous petition under Section 482 Cr.P.C. is directed against the order dated November 2, 1987, passed by the Additional Chief Judicial Magistrate, Rajsamand, taking cognizance against the petitioner under Section 409, I.P.C.
2. Fateh Singh filed a complaint on August 28, 1981 against Doongar Singh and Gopi Lal under Sections 409 and 420 I.P.C. in the Court of the Judicial Magistrate, Kumbhalgarh, alleging therein that Dongar Singh lodged a First Information Report at the Police Station, Charbhuja with respect to bus No. RJY 2428 that the said bus had been taken away by Fateh Singh. The police seized the bus and produced the bus in the Court. Doongar Singh and Fateh Singh, both, applied for the custody of the bus, but the learned Magistrate gave the custody of the bus to Doonga' Singh. Both the accused Doongar Singh and Gopilal submitted the surety bonds and took the custody of the bus on certain conditions. The police, after necessary investigation, presented the Final Report and the learned Magistrate, by his order dated August 11, 1981, directed Doongar Singh to produce the bus at the Police Station, Charbhuja, and to submit the receipt in the Court regarding the production of the bus at the Police Station. It was, also, alleged that the Court ordered that the custody of the bus may be given to the complainant Fateh Singh. Accused Doongar Singh did not produce the bus at the Police Station, Charbhuja, and, therefore, Fateh Singh moved an application and on that application, the Court directed the police to seize the bus. The police recovered the bus from the jungle, but the engine and certain other parts of the bus were missing. It was, therefore, prayed that the accused has, thus, committed an offence under Sections 409 and 420 I.P.C. This complaint was sent by the learned Magistrate for investigation under Section 156(3) of the Code of Criminal Procedure to the Station House Officer, Police Station, Charbhuja, and the police, after necessary investigation presented the challan against the accused-petitioner under Section 409, I.P.C. The learned Magistrate, on the presentation of the challan, after perusing the challan-papers, took cognizance against the petitioner under Section 409, I.P.C. by his order dated July 31, 1982. The learned Magistrate, thereafter, heard the counsel for the petitioner and the Assistant Public Prosecutor for framing the charge and by his order dated November 2, 1987, framed the charge against the petitioner under Section 409, I.P.C. It is against this order that the present petition under Section 482 Cr.P.C. has been filed.
3. Heard learned Counsel for the petitioner and the learned Public Prosecutor.
4. It is contended by the learned Counsel for the petitioner that there is no evidence on record, on the basis of which the charge under Section 409, I.P.C. should have been framed against the petitioner. It is, also, submitted by the learned Counsel for the petitioner that the order dated November 2, 1987, passed by the learned Additional Chief Judicial Magistrate, Rajsamand, framing the charge under Section 409 I.P.C. against the petitioner, is not a speaking order and it does not disclose as to on the basis of what evidence the learned Magistrate has framed the charge against the petitioner. The learned Public Prosecutor, on the other hand, has supported the order passed by the learned lower Court framing the charge against the petitioner. I have considered the rival submissions made by the counsel for the parties and perused the order passed by the learned lower Court, as well as record of the case.
5. The order passed by the learned lower Court, framing the charge against the petitioner under Section 409, I.P.C. is not a speaking order. No reasons have been recorded by the learned Magistrate, on the basis of which he came to the conclusion that there are sufficient grounds for proceeding against the accused petitioner. The recording of the reasons is a must so that it may enable the superior Court to examine the correctness of the reasons for which the learned trial Court has held that there is or is not sufficient ground for proceeding against the accused. As the Court has not given any reasons to frame the charges against the petitioner. I have therefore, gone through the record of the case. The learned Magistrate, while framing the charges, has completely over-looked some facts, which have material bearing on the case. After the order dated August 11, 1981 was passed by the learned Magistrate, the accused petitioner filed a revision petition before the High Court challenging the order dated August 11, 1981, passed by the Additional Chief Judicial Magistrate. That revision-petition was dismissed by the High Court on August 19, 1981 with the observations that the order dated August 11, 1981, passed by the Munsif and Judicial Magistrate, Kumbhalgarh shall remain suspended for one month and in the meanwhile, the petitioner may file a civil suit for declaration. The petitioner, in pursuance to this order filed a civil suit for declaration in the Court of the Additional District Judge, Sirohi and that suit was ultimately decided by the Additional District Judge, Sirohi, in favour of the petitioner. That judgment, passed by the learned Additional District Judge is on the record of the trial Court. The learned Additional District Judge, by his judgment dated October 30, 1982, declared that the petitioner is the lawful owner of the bus No. RJY 2428 since March 16, 1979 and is entitled for the possession of that bus. It appears that the learned Magistrate, while framing the charge, has not properly considered the materials on record and the order passed by the learned Magistrate is not a speaking order. As no reasons have been assigned, on the basis of which the learned Magistrate has framed the charges against the petitioner and as the order passed by the learned Magistrate is not a speaking order, the order, therefore, deserves to be quashed and set-aside.
6. In the result, I allow this miscellaneous petition, filed by the petitioner, set-aside the order dated November 2, 1987, passed by the Additional Chief Judicial Magistrate, Rajsamand, framing the charges against the petitioner and remand the case to the learned Additional Chief Judicial Magistrate, Rajsamand, for considering all the relevant materials on record and to pass an appropriate order after giving an opportunity of hearing to the parties.