1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT Gajanand Singh Vs. State of Rajasthan & ors. SB CRIMINAL MISC. PETITION NO.1105/2002. Under Section 482 Cr.P.C. DATE OF ORDER: 20th July, 2010. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. Shiv Charan Gupta for the petitioner. Mrs.Rekha Madnani, PP for the State. Mr. S.K. Gupta for the respondents. BY THE COURT:- This criminal miscellaneous petition under section 482 Cr.P.C. has been filed by petitioner Gajanand against the order dated 13.3.2002 passed by the learned Additional Chief Judicial Magistrate, Gangapur city District Sawai Madhopur whereby he refused to take cognizance against the accused-respondents for the offence under sections 323, 452, 427 and 379 IPC and that of the order dated 18.4.2002 passed by the learned Additional Sessions Judge (Fast Track) Gangapur city whereby the revision petition filed by the complainant-petitioner has been rejected and the impugned order dated 13.3.2002 has been confirmed. Briefly stated, the facts of the case are that a written report was submitted in the police station Gangapur city on 7.12.1999 by Gajanand Singh son of Jay Singh alleging therein 2 that on 7.12.1999 in the morning at about 8.00 a.m., the accused- respondents Mool Singh, Ravindra Singh @ Fodal Singh, Dharam Singh and Bhupendra Singh entered in his house and gave beating to his son. It is also alleged that the accused-respondent Ravindra Singh was having a sword in his hand and rest of the accused named above were having gandasi, lathi and dharia in their hands. It is also alleged that after giving beating, they also break-down the slabs of the court-yard and took jewelery and a sum of Rs.1,000/- with them. It is also alleged that the accused had attacked on his family members on previous occasion also. On the basis of above written report, FIR No.707/1999 was registered in police station Gangapur city for the offence under section 448, 427, 379 and 323 IPC. The police after usual investigation submitted charge-sheet. On 8.8.2000 cognizance of the offence under section 323, 442, 447 and 379 IPC was taken by the Magistrate against the accused-respondents. The order of cognizance was challenged by the accused-respondents before this court by way of S.B. Criminal Revision Petition No.504/2000 and this court vide order dated 23.3.2001 set aside the order dated 8.8.2000 taking cognizance by the Magistrate and remitted the case back to the learned trial court with the direction to record the statement of injured and after going through all the documents including the final report to rehear the case and decide the same in accordance with law within 15 days of receipt of the record of the case. 3 The learned trial court recorded the statement of injured Jitendra Singh, son of the complainant, and thereafter passed order on 19.5.2001 whereby cognizance of the offence under sections 323, 452, 427 and 379 IPC against the accused- respondents was taken. The revision petition filed before the High Court against the said order was accepted on 9.7.2001 and the order taking cognizance was set aside with the direction that compliance of the directions given in the order dated 23.3.2001 be made. The learned Magistrate after hearing both sides found that the case was of civil nature and no prima-facie case against the accused-respondents was made out, therefore, the protest petition was liable to be dismissed and the final report submitted in the case was accepted. The order passed by the learned Magistrate was challenged before the learned Additional Sessions Judge (Fast Track) Gangapur city who vide its order dated 18.4.2002 rejected the revision petition filed by the complainant-petitioner and confirmed the order dated 13.3.2002 passed by the learned Magistrate. Hence, the present criminal misc. petition has been filed. I have heard learned counsel for the petitioner as well as learned public prosecutor assisted by the learned counsel for the accused-respondents and have carefully perused the material available on record. It has been the contention of the learned counsel for the petitioner that prima-facie by the evidence recorded by the 4 Magistrate it is amply proved that the accused-respondents entered in the house of the complainant and the son of the complainant was beaten by legs and fists. It is also contended that while the accused left the house, they took away jewelery and a sum of Rs.1,000/- with them, therefore, the learned Magistrate was required to take cognizance against the accused for the alleged offence. The order passed by the learned Magistrate declining to take cognizance is bad in law, therefore, requires to be set aside. It is also contended that the learned revisional court has not properly appreciated the evidence and also the legal position, therefore, the order of the learned revisional court is also liable to be set aside. Learned counsel has read over before me the statement of the witnesses recorded under section 200 Cr.P.C. and also under section 164 Cr.P.C. and 161 Cr.P.C. Per contra, it has been contended that the scope of the misc. petition filed under section 482 Cr.P.C. is very narrow and particularly in the present case when the learned trial court as well as the learned revisional court both have not found favour with the complainant petitioner and it has been found that no case is made out against the accused-respondents, therefore, the findings recorded by the courts below prima-facie appears to be legally sustainable, therefore, the misc. petition is liable to be dismissed. I have considered the submissions made before me. In the first information report and in the statement of witnesses no specific overt-act has been assigned to any of the 5 accused-respondents in respect of the assault made on the son of the complainant. Complainant Gajanand was not at house when the incident took place, therefore, his statement is of no significance. In the statement he has stated that the accused were having sword, gandasi, lathis etc. but then there is no injury report available worth name. Jitendra Singh, injured, was not examined by the doctor. Be that as it may, it is not believable that many persons when intend to beat a person having deadly weapons with them, no injury was caused by them. It is to be seen that no recovery in this case has been made though the allegation is that the accused-respondents took jewelery and a sum of Rs.1,000/-. From the perusal of the statement, it appears that the accused- respondents and complainant are near relatives. There are civil litigations pending between them. The matter has been considered twice by the High Court and on both occasions, the order taking cognizance was set aside and ultimately now finally the learned Magistrate on perusal of the entire material found that no case was made out and the present matter is of civil nature declined to take cognizance and accepted the final report submitted in the case. The order of the learned Magistrate has been confirmed by the revisional court. In view of the findings recorded by the learned two courts below which are based on proper appreciation of material available on record, there remains very narrow scope of interference in a petition filed under section 482 Cr.P.C. 6 In the above circumstances, it cannot be said that the learned trial court has committed any illegality or has not properly appreciated the material placed before it so as to set aside the order of the magistrate refusing to take cognizance and that of the learned Additional Sessions Judge whereby the order passed by the learned Magistrate was confirmed. I do not find any merit in the contention of the learned counsel that the learned courts below have not properly appreciated the material and, thus, committed illegality in declining to take cognizance against the accused- respondents while rejecting the protest petition filed by the complainant-petitioner. In view of above discussion, the misc. petition is liable to be and is hereby dismissed. (S.P. PATHAK,J) BBLM