- (1.) BOTH the petitions under Section 482, of the Criminal Procedure Code, 1973 have been filed with the prayer that the challan presented by the police relating to F. I. R. No. 43 of 1992, Police Station Kotwali, Churu as well as proceedings initiated on the basis of the challan be quashed.
(2.) HEARD learned counsel for the petitioners and the learned Public Prosecu- tor and perused the record of the Criminal Case No. 80/93 State vs. Nasir Khan & Ors. Both these petitions have been filed by persons who are accused of having committed offences under sections 307, 323, 341, 326, 147, 148 and 149 of the Indian Penal Code and against whom a report purported to be a report under Section 173, Cr. P. C. was submitted in the Court of the Chief Judicial Magistrate , Churu by the Station House Officer of the Police Station Kotwali, Churu. On the basis of the aforesaid report purporting to be a report under Section 173, Cr. P. C. , cognizance of offences under Sections 307, 323, 341, 326, 147, 148 and 149 of the Indian Penal Code was taken by the Officer performing the duties of the Chief Judicial Magistrate on the day. The accused persons viz. , Nasir Khan, Rafiq, Baboo Khan, Rafiq s/o Yaqub Khan, Asgar Khan, Changes Khan and Yasin Khan were stated in the police-report to be absconding and therefore, after taking cognizance of the offences mentioned above, warrants of arrest were ordered to be issued compelling the attendance of the accused petitioners. The facts which are relevant for the disposal of these petitions may be sum- marised below : On 22. 2. 92, Sabir Ali s/o Salim Khan gave oral information to Banwari Lal, F. C. No. 139 at Government Hospital Churu about the commission of the offences. Information given by Sabir Ali was recorded by Banwari Lal, F. C. and the letter submitted at the Police Station and, on the basis of that information F. I. R. No. 43/92 was registered. According to the information given by Sabir Ali, on 22. 2. 92, at about 8 A. M. , Sabir Ali was going towards Rohi with his cows. When he reached near the house of Iqbal Khan, all of a sudden, 10-12 persons attacked him. Asgar Khan was ahead of the other assailants and he was instigating others to kill the complainant (Sabir Ali ). The assailants were armed with lathis, axes, gandasis and knives and after surrounding the complainant Sabir Ali they started inflicting injuries on his body. Sabir Ali had one small stick with him with which he tried to defend himself. At that time, Yasin and Nasir Khan inflicted knife-injuries on the head of Sabir Ali and Baboo Khan inflicted a gandasi injury on his waist and on his nose. Several injuries with iron chain were also inflicted on his body. Sabir Ali in order to save himself from the assault tried to escape by entering into the house of Ast Ali but he was followed by the assailants and he was given a beating inside the house of Ast Ali. Meanwhile, Iqbal and Mushtaq reached the scene of occurrence and they saved Sabir Ali. It was also stated by Sabir Ali that about 2 1/2 years ago he had severed his relationship with his wife and Asgar Khan (vakil) was acting as pleader in her case and he was demanding a sum of Rs. 2,00,000/- and was also asking him to take his wife with him and was threatening to kill him in the event he did not comply with the above demands. On the basis of the information given by Sabir Ali, the first-information-report was registered at Police Station Kotwali, Churu. After conducting investigation, the report purporting to be a report under Section 173, Cr. P. C. was submitted in the Court of learned Chief Judicial Magistrate, Churu and on the basis of that report cognizance of offences under Sections 307, 323, 341, 326, 147, 148 and 149 of the Penal Code was taken and warrants of arrest were issued against the accused persons to compel their attendance. Feeling aggrieved by the proceedings initiated against them, the accused persons have filed these petitions. Asgar Ali has filed S. B. Criminal Misc. Petition No. 56/94 and the remaining accused persons have filed S. B. Criminal Misc. Petition No. 87/94. Learned counsel for the petitioners have filed a copy of the order No. F. 25 (6)Home/11/98 dated 28th August, 1993 passed by the Deputy Secretary to the Government of Rajasthan. This document shows that on representation filed by Asgar Ali Advocate of Churu, the State Government gave a direction to the effect that the case be got re-investigated by an officer of the level of Superintendent of Police and it was further directed that re- investigation-report may be made available to the Home Department with the comments of the Inspector General of Police (CID) to whom the above mentioned order was addressed. Learned counsel for the petitioners have submitted that this order was not complied with and the report on the basis of which cognizance was taken of the various offences against the accused petitioners was submitted by the Station House Officer of the Police Station Kotwali, Churu, without complying with the directions contained in the State Government's order dated 28. 8. 93.
(3.) IN both these petitions, the following grounds have been urged : (i) That on 25. 1. 94, the Chief Judicial Magistrate, Churu was on leave and cognizance of the offences was taken by another Officer who was looking after the work of the Chief Judicial Magistrate and he had no legal jurisdiction to take cognizance of the offences, therefore the initiation of the proceedings is without jurisdiction and it cannot be said that the proceedings have been legally initiated in the Court of the Chief Judicial Magistrate. (ii) The report on the basis of which cognizance was taken was submitted by the Station House Officer, P. S. Kotwali, Churu without complying with the provisions of Section 173 (3) of the Criminal Procedure Code read with Section 158 and the Rajasthan Police Rules, 1965 and, therefore the Magistrate was not legally empowered to take cognizance on such a report. (iii) That in this case the report submitted by the Station House Offi- cer, P. S Kotwali, Churu cannot be regarded a report under Section 173 of the Criminal Procedure Code because after the passing of the order dated 28. 8. 93 by the State Government, it was obligatory on the part of the Police to comply with the directions given by the State Government and that after passing of the order by the State Government, the police officer who was investigating the case ceased to have the jurisdiction to conduct further investigation and submit the report under Section 173, Cr. P. C. It is further submitted that since the report submitted by the police in this case cannot be regarded a report under Section 173 of the Criminal Procedure Code, cognizance of the offences under clause (b) of sub-section (1) of Section 190 on the basis of such report could not have been legally taken by the Officer acting as the Chief Judicial Magistrate, Churu. (iv) That in view of the facts, the issue of warrants of arrest against the accused persons was not justified because the allegation that they were absconding was false and there was no abscondance on the part of the accused persons and the petitioner Asgar Khan, who was one of the accused, was in fact a practising Advocate and was practising regularly and it would have been in the fitness of things if bailable warrants were issued. The learned Public Prosecutor has opposed these petitions and supported the order of taking cognizance as well as the institution of the case on the basis of the report submitted by the Station House Officer, P. S. Kotwali, Churu in this case. The first question to be decided is whether the Magistrate who purported to act as the Chief Judicial Magistrate on 25. 1. 94 was legally empowered to take cognizance of the offences. The fact that the Chief Judicial Magistrate was on leave is evidenced by the order dated 25. 1. 94 itself. The submission made by the learned counsel for the petitioners is that the Chief Judicial Magistrate in exercise of the statutory powers conferred on him distributes work among the Judicial Magistrates subordinate to him under sub-section (2) of Section 15 of the Criminal Procedure Code, 1973. The Chief Judicial Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Judicial Magistrates subordinate to him and the fact that the challan was to be filed in the Court of the Chief Judicial Magistrate shows that the cases arising out of the jurisdiction of Kotwali, Churu, were to be instituted in the Court of the Chief Judicial Magistrate and not in the Court of any other Magistrate and, therefore, the Judicial Magistrate who was looking after the work of the Court of Chief Judicial Magistrate on 25. 1. 94 had no jurisdiction to take cognizance of the offences on the basis of the report submitted by the Station House Officer of Police Station Kotwali, Churu. I have carefully considered the submission. Sub-Section (2) of Section 14 of the Criminal Procedure Code provides that, "except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district. " A similar question was decided by a learned Single Judge of this Court in Radhey & Ors. vs. Girwar (1), wherein sub-sections (1) and (2) of Section 12 of the Criminal Procedure Code, 1898 were considered. Several decisions of the High Court were also considered and conclusions were given by the learned Single Judge in para 9 at page 197. The learned Judge observed as under : "it may be noted that the plain language of S. 12 (1) and (2) supports the view taken by Beaumont C. J. , in the Bombay Case, AIR 1935 Bom- bay 409, referred to above. Mere allocation of a particular area to a particular Magistrate by the District Magistrate cannot by itself be understood to have the effect of excluding the jurisdiction of that Magistrate from over other areas of the same district over which he exercises jurisdiction by virtue of provision of S. 12 (2), Criminal P. C. In order to exclude certain areas from the jurisdiction of the Magistrate, there must be something express or by necessary implication in the order defining the local area to warrant an inference that the intention of the said order was to exclude the jurisdiction of such Magistrate from such areas. I am in respectful agreement with the view of Beaumont C. J. , noted above. . . . . . The technicality that has prevailed in the opinion of the learned Additional District Magistrate is resolved when the provisions of S. 12 (1) and (2) is interpreted in the manner noted above. " I am in respectful agreement with the views expressed by Hon'ble Justice Ranawat in the case of Radhey & Ors. vs. Girvar (supra ). The Magistrate is appointed by the High Court for the whole of the District Sub-section (2) of Section 14 of the Criminal Procedure Code, 1973 expressly provides that unless otherwise provided by the definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district. It is true that sub-section (2) of Section 15 of the Criminal Procedure Code, 1973 gives statutory powers to the Chief Judicial Magistrate to make rules or give special orders consistent with the Code as to distribution of business among the Judicial Magistrates subordinate to him and sub-section (1) of Section 14 of the Code of Criminal Procedure, 1973 further empowers the Chief Ju- dicial Magistrate to define the local limits of the area within which the Magistrates appointed under Section 11 or under Section 13 may exercise allor any of the powers with which they may respectively be invested under this Code. But, in this case, there is nothing to show that by any order, the jurisdiction of the Magistrate was restricted to a limited area within the district and, therefore, it cannot be said that he had ceased to have jurisdiction which is expressly saved by sub-sec. (2) of Sec. 14 of the Code of Criminal Procedure, 1973. My attention has not been drawn to any such order passed by the Chief Judicial Magistrate under sub-section (1) of Sec. 14 as may support the contention of the learned counsel for the petitioners. ;