Sobhagmal Jam, J. - (1.) This petition under section 482, CRIMINAL PROCEDURE CODE 1973 is directed against the order dated June 8, 1988, of the Munsif and Judicial Magistrate, Jalore, taking cognizance of the offence under sections 451 and 352, I.P.C. against the petitioners.
(2.) Learned counsel (or the petitioners urges that a similar complaint was filed earlier against the accused by the complainant. That complaint was sent for investigation to the police. A Final Report was submitted by the police and was accepted by the learned Magistrate. Learned counsel for the petitioners submits that while considering the question of issuing process on the second complaint med by the same complainant on the same facts, the learned Magistrate ought to have taken into consideration the final report and the material placed by the police in connection with the previous complaint This having not been done, the order under challenge, argues learned counsel for the petitioners, suffers from a manifest defect and the same deserves to be quashed by this Court. Learned counsel has, in this connection, cited Jagdish Ram v. The State of Rajasthan, wherein J.R. Chopra, J. held and observed as under: Here, the question is that whether a Magistrate who takes cognizance of a case on the basis of the complaint filed by the complainant and holds an enquiry under sections 200 & 202, Cr. P.C. independently of the result of the investigation that is submitted by the Police, can issue process against the accused without taking into consideration and record of the investigation which was produced before the Court in support of the report of the police i.e. whether that record or (illegible) before the Court has to be looked into by the Court before issuing process against the accused or it can afford to completely ignore it. I am of the considered view that the record which has been submitted by the Police is a material placed on the record and it is the duty of the Court to consider that record and then to arrive at its own conclusion whether in such a case process should be issued against the accused or not. In this case, the Magistrate has not at all considered that record. The order issuing process against the accused does not disclose that he even looked into that record what to talk of its consideration before it ordered to issue the process against him, and, therefore, that has resulted in the abuse of the process of the Court and grave miscarriage of justice. In this view of the matter the order of the learned lower court dated 26/6/1986 cannot be sustained and so also the order of the learned revisional court deserves to be set aside. The learned lower court should consider the entire material available on record before deciding whether the process should be issued against the accused-petitioner or not. It is not incumbent on the learned lower court to hear the petitioner but it is the duty of the Court to consider the material available on record to arrive at a conclusion whether in the fact and circumstances of this case, the complaint should be dismissed under S. 203, Cr. P.C. or process should be issued against the accused-petitioner.
(3.) The order of the learned Magistrate dated June 8, 1988, was read-over to me. The order does not contain even a reference to the earlier complaint or the final given by the police and duly accepted by the learned Magistrate. Obviously, therefore, learned counsel is justified in arguing that the learned Magistrate was not alive to the fact that in connection with the same incident a complaint filed earlier by the complainant was forwarded to the police for investigation, in which a final report was submitted and duly accepted by the learned Magistrate. This fact has a material bearing on the question, whether to the same facts, process has to be issued against the accused. The principles laid down by J.R. Chopra, J. Jagdish Rams case, are applicable to the present case in as much as the learned Magistrate here, in this case, also, has not considered the record which was filed by the police along with the Final Report given on the previous complaint. Apparently, therefore, the order of the learned Magistrate dated June 8,1988, deserves to be set-aside.;