- (1.) Through this misc. petition, the petitioners seek quashment of the proceedings of case No. 142/90 pending against them in the Court of Addl. Chief Judicial Magistrate, Sri Ganganagar. This is the second time that the petitioners have come to this Court to challenge the order of taking cognizance.
(2.) The relevant facts are these: Deceased Roop Ram was the brother of the first informant Hari Padam (non-petitioner No. 2). He was shot dead in broad day light at 3 or 3.15 p.m. on 6-6-86 in Dhanmandi. Hari Padam lodged the first information report at 5.45 p.m., which reached the 'Ilaka' Magistrate on the same day, in which it was stated that Hazari, Sada Sukh, Hemraj and Veeru (petitioners) had come in a car, driven by Kishan S/o. Dula Ram (petitioner) and they had firearm, with them. Sada Sukh, Hemraj and Veeru had fired shots at Roopram causing his death. It was further stated in the report that the occurrence was witnessed by the first informant himself. Sahib Ram and Hans Raj and other persons of the Mandi. On this report, a case under Sections 148, 302, 149, IPC and 27 of the Arms Act was registered at Police Station Ghoomarwali. On investigation, the police came to the conclusion that the persons named in the F.I.R. had not committed the offence and the real culprits were Krishanlal S/o. Bahadar Ram. Om Prakash and Mahipal. The police, therefore, filed challan against them showing Mahipal as absconding. The learned Magistrate took cognizance of the offences against accused persons challaned by the police on 17-11-86. First informant Hari Padam filed protest petition on 15-12-86 pointing out that the police had left out the real culprits in the case. By the order dt. 10-4-87, the learned Magistrate rejected the protest petition and committed the case filed by the police, to the Court of Sessions. Hari Padam challenged that order in this Court by filing revision petition No. 139/87 which was decided on 6-11-87. This Court set aside the order of the Magistrate dt. 10-4-87, quashed the commitment of the accused and directed the Magistrate to afford Hari Padam an opportunity of being heard in the light of the decision of the Supreme Court in the case of Bhagwan Singh v. State and pass appropriate order in accordance with law. Thereupon Hari Padam filed private complaint on 7-12-87 against the petitioners. The learned Magistrate proceeded to hold enquiry and examined complainant Hari Padam and his witnesses Hans Raj, Sanwat Ram and Dr. Ram Pratap, Hari Padam closed his evidence on 6-7-88. Thereupon vide order dt. 3-8-90 passed in Complaint Case No. 12/90 the learned Magistrate ordered amalgamation of the complaint with the Criminal Case No. 142/89 (case challaned by the police) pending in his Court. By the order dt. 4-9-90 the learned Magistrate issued process against the petitioners. They were summoned by warrants of arrest. That order was challenged by the petitioners by filing misc. petition in this Court which was disposed of giving directions that the objections raised in the misc. petition against the cognizance may be taken before the Magistrate. The petitioners thereupon filed an application before the Magistrate on 14-1-1991 for recalling the order of taking cognizance. By the order dt. 23-1-1991, the learned Magistrate rejected that application observing that he was not competent to review the order of taking cognizance.
(3.) The peculiar facts of the case are that in the F.I.R. Hari Padam had stated that 5 petitioners were the assailants, who had caused the death of Roopa Ram but the police instead of filing charge-sheet against those persons challaned two different persons and further stating that one assailant Mahipal was absconding. The first informant insists that the culprits were none else than the petitioners who were named in the F.I.R. and therefore he has filed a private complaint.;