Decided on January 04,1984


Referred Judgements :-



BYAS, J. - (1.)THESE two revisions are directed against an order of the learned Judicial Magistrate (3), Jodhpur dated May 30, 1983 by which cognizance for an offence under section 352, IPC was taken on a private complaint and the accused was summoned to face trial. Since the revisions arise out of one and the same order, they were heard together and are disposed of by a common judgment.
(2.)THE grievance of the complainant is that cognizance for offences under sections 323 and 504, IPC should have also been taken whereas the contention of the accused is that no cognizance of offence could be taken against him under Sec. 197, Cr. P. C. without the previous sanction of the State Government.
It would be proper to briefly recapitulate the facts giving rise to these revision petitions.

On 22-1-1982, the complainant Dhanpatlal presented a complaint in the court-below for offences under sections 323 and 504, IPC. It was alleged that Smt. Hansarani, who was the wife of the son of his brother, was admitted for treatment in E. S. I. Female Ward of M. G Hospital, Jodhpur on 29-4-1981 as a burnt case. At about 4. 30 p. m. on that day, white the complainant and other relatives were standing near her bed, the accused came with a photographer and asked the photographer to take her nude snaps. The complainant raised protest against this action of the accused. The accused got infuriated and hurled abuses on him and gave a fist blow on his face. It was further averred that the complainant went to the Enquiry Office of the hospital to lodge a complaint. The accused followed him and caught hold of him by his neck. There also, he addressed abusive words to him. The learned Magistrate examined the complainant under sec. 200, Cr. P. C. and thereafter, conducted enquiry under Sec. 202, Cr. P. C. During enquiry, the complainant examined one witness Ganpatmal. He thereafter passed the impugned order and summoned the accused to face trial for an offence under Sec, 352, IPC.

In the revision petition filed by the accused, it was alleged that he was the Doctor on duty in ESI Female Ward of M. G. Hospital. At about 4 30 p. m, he was informed that the condition of Smt. Hansarani was becoming precarious. He, therefore, immediately reached her bed with House-Surgeon Chameli Patel. He prescribed certain injections and made efforts for arranging the blood from Blood Bank for her. Many persons collected there, including patient's father-in-law Shri Vijay Raj and husband's brother Kanmal. He asked them not to collect near the patient. They got infuriated and man-handled him. Smt. Hansarani did not survive and passed away. It was a burnt case, in which Smt. Hansarani was intentionally burnt by her husband Ashok Dhariwal (Oswal ). The relatives of Hansarani wanted to hush up the matter and raised protest even against the post mortem examination of her dead-body. Since, he (accused) was manhandled and obstructed by Vijayraj and Kanmal in the discharge of his duties, he lodged a report against them at police station, Sardarpura, Jodhpur. The police registered a case under Sections 332 and 451, IPC. But after investigation, filed a negative final report. The learned Chief Judicial Magistrate dis-agreed with the view of the police, did not accept the negative final report and took cognizance for offences under sections 332 and 451, IPC against Vijayraj and Kanmal by his order dated December 30, 1981. In order to give a counter-stroke to their case, the complainant who is a real brother of Vijayraj has filed the malicious complaint only to humiliate and harass him The complaint was filed on 22-1-82 only after when the learned Chief Judicial Magistrate had passed the order of taking cognizance against Vijayraj and Kanmal on 30-12-81. The accused has filed a certified copy of the order of the Chief Judicial Magistrate dated December 30, 1981 in support of his submissions.

It is in this manner that both the parties felt aggrieved against the impugned order of the learned Judicial Magistrate (3), Jodhpur.

(3.)IT would be proper first to take up the revision filed by the complainant. IT was argued that there were no good and sufficient reasons not to believe the sworn statements of the complainant and his witness Ganpatmal. Both of them have stated that the accused showered abuses to the complainant and gave him fist blow on his face. These allegations make out the offences punishable under Sections 323 and 504, IPC. The learned Judicial Magistrate recorded no reason as to why he was impliedly dismissing the complaint for offences under Sections 323 and 504, IPC. I have bestowed my thoughtful consideration to the contention and find no merit in it.
In order to properly appreciate the statements of the complainant and his witness Ganpatmal, the back-ground will have to be borne in mind in which offences are said to have been committed by the accused. Complainant Dhanpatmal is the real uncle of the deceased-victim's husband Ashok Dhariwal, so also, Vijayraj is his real brother. Kanmal is the son of Vijayraj. Like wise, Ashok Dhariwal is the son of Vijayraj. Ashok Dhariwal is facing trial for causing the death of his wife Hansarani by burning her. Vijayraj and Kanmal are facing trial for the offences alleged to have been committed at about 4. 30 p. m. punishable under sections 451 and 332, IPC, as is evident from the order of the learned Chief Judicial Magistrate dated December 30, 1981. In that case, under sec. 332 and 451, IPC the charge against Vijayraj and Kanmal is that they obstructed the accused in discharging his duties as a public servant and gave beating to him. The complainant filed the complaint only on 22-1-82 i. e nearly after eight months of the occurrence and further only after when the Chief Judicial Magistrate took cognizance of the offences against Vijayraj and Kanmal.

Keeping this back-ground in mind, the pertinent question is whether the accused Dr. Suresh Chandra Jain hurled abuses on the complainant Dhan-pat Mal and gave him fist blows or caught hold of his neck. No details of the abuses were given in the complaint. Only the vague words that ugly abuses were hurled were not sufficient to make out a case under s. 504, IPC. The complainant must state and show that words were actually used by the accused in order to find out whether those words amounted to an insult. It was observed in Pukh Raj v. State (S) that it is necessary that the particular words spoken by the accused, should be proved in order to decide whether the use of those words amounted to intentional insult. In the instant case, the complaint is absolutely silent on this material point, so also the complainant and witness Ganpat Mal did not state in their statements what actual words were used by the accused. The learned Magistrate was, therefore, perfectly justified in not taking cognizance for an offence under Sec. 504, IPC.

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