Tara Chand and ors. Vs. the State of Raj. and anr. - Court Judgment

Excerpt:
(a) criminal procedure code, 1973 - sections 397(3), 482--petition under section 482 at the instance of the party who failed in revision before sessions court is barred by section 397(3).; (b) criminal procedure code, 1973 - sections 200, 202--final report--magistrate taking cognizance rejecting final report submitted by police-valid when prima facie case made out--no necessity to examine witnesses before taking cognizance--this petition is not altered on the ground that protest petition was filed.;revision petition dismissed - - two, he may go through the material collected during investigation and if he is satisfied that the accused have committed offence he may straightway issue process against them.g.l. gupta, j.1. this misc. petition is directed against the order dt. 15.10.1997 passed by the learned addl. sessions judge, churu whereby he upheld the order dt. 17.2.1997 passed by judicial magistrate, churu taking cognizance of the offence under sections 341, 323 and 504 ipc against the petitioners.2. mr. thakur, learned counsel for the petitioners, points out that the police had given final report in the matter and the learned magistrate has taken cognizance without recording evidence under chapter xv of the code of criminal procedure, and therefore, the order is not sustainable.3. the learned public prosecutor and mr. gehlot, on the other hand, supporting the order, contends that the petitioners have already availed of the right of filing revision before the sessions judge, and therefore, this second revision in the garb of miscellaneous petition is not maintainable.4. there is merit in the contention of the learned public prosecutor and mr. gehlot that this petition is nothing but second revision in the garb of miscellaneous petition. the second revision by the same party is barred by section 397(3) cr.p.c.5. even on merits there is no substance in the contention of mr. thakur. there is evidence on record in the statements of sohanlal, pratap, gopi ram and ram niwas that they had seen the petitioners manhandling bhagwana ram in a jeep. by the evidence of the aforesaid four witnesses, it is prima facie proved that the petitioners had put bhagwana ram in a jeep and had given beatings to him. on the basis of this evidence it cannot be said that the learned magistrate has committed any error in issuing process against the petitioners. it is relevant to state that even according to the final report, offence under section 504 ipc was proved against the petitioners.6. when the police submits final report after investigation, it is not necessary for the magistrate to record evidence before issuing process against the accused persons. if on the material collected by the police during investigation, it is prima facie found that the accused had committed the offence, cognizance can be taken without recording evidence under chapter xv cr.p.c.7. the position does not change simply because the complainant files protest petition. two courses are open to the magistrate, when a protest petition is filed. one, he may treat the protest petition as the complaint and proceed to hold enquiry under chapter xv cr.p.c. two, he may go through the material collected during investigation and if he is satisfied that the accused have committed offence he may straightway issue process against them. it cannot be accepted that in each and every case in which protest petition is filed, the magistrate is under obligation to hold enquiry under chapter xv cr.p.c.8. there being no merit in the petition, it is hereby dismissed.