Kanwaljit Singh Ahluwalia, J. - (1.) The present petition has been filed under Section 482 Cr.P.C., 1973 by the accused praying that the order dated 6.9.2017 passed by Additional Sessions Judge, Malpura, Tonk whereby cognizance of offences was taken against the petitioner under Sections 452, 341 and 354 IPC be set aside.
(2.) This Court on 11.4.2018 had passed the following order:- "Present petition has been filed to assail the impugned order dated 13.5.2014 passed by the Judicial Magistrate, First Class, Malpura, District Tonk alongwith the order dated 6.9.2017 passed by the Additional Sessions Judge, Malpura, District Tonk, whereby order of cognizance was affirmed. Learned counsel for the petitioner has submitted that respondent No.2 Ajeet Singh had filed a complaint and on the said complaint, orders were passed under Section 156(3) Cr.P.C., 1973 and in consequence thereof, FIR No.47/2012, was registered at Police Diggi, District Tonk for offences under Sections 341, 323, 354, 452 IPC. Learned counsel contends that the said complaint was investigated and the investigating agency has submitted Final Report in negative form holding that the complainant has lodged false FIR. Learned counsel submits that for coming to conclusion that complainant has lodged false FIR, the investigating agency has given following four reasons:- (a). That the accused-petitioner, on the day of incident, was not present at the place of occurrence. Investigating agency has accepted the plea of alibi against the petitioner. (b) . Bablu @ Ramnarain, co-accused of the petitioner, had lodged a FIR in which vide judgment (Annx.7) complainant was convicted. Thus, the investigating agency held that the FIR registered at the instance of complainant Ajeet Singh was a counter-blast. (c) . Investigating Officer further came to the conclusion that the allegation leveled by the complainant that he has suffered injuries, is not corroborated by the medical evidence. (d) . The Investigating Officer further held that there are material contradictions between the statements made by the witnesses and the complainant and hence, the version is not reliable. Learned counsel for the petitioner contends that after the Final Report in negative form was submitted, the trial judge relying upon the preliminary evidence, recorded statements of the witnesses under Section 202 Cr.P.C., 1973 and took cognizance of the offences against the petitioner and co-accused without referring the above reasons spelt by the Investigating Officer. To fortify the above submission, learned counsel has relied upon the judgment rendered by the coordinate Bench at Principal Seat at Jodhpur in Criminal Misc. Petition No.234/2012, titled Ajendra Agarwal v. State of RajasthanOrs., decided on 04.10.2016. A perusal of the above said judgment reveal that in that case cognizance was taken by the Magistrate under Section 190 Cr.P.C., 1973 What is legal position if the court treat the protest petition as a complaint and record preliminary evidence of the witnesses under Section 202 Cr.P.C., 1973 learned counsel for the petitioner prays for adjournment to assist this court. Shri S.S. Hora, Advocate, who is present in court, is directed to assist this court as Amicus Curiae. Learned counsel for the petitioner is directed to supply copy of the petition to Shri S.S. Hora, Amicus Curiae, during the course of the day. List on 16.04.2018."
(3.) Today, Mr. S.S. Hora Advocate being Amicus Curiae has assisted this Court and has canvassed that even if the Magistrate proceeds with the protest petition as a Complaint under Chapter XV of Code of Criminal Procedure, he has to consider the report submitted by the police in negative form.;