Bhagwan Sahai Khandelwal Vs. The State of Rajasthan & Anr.
EmailAppeal: Criminal Appeal No. 438/1998
With
Crl. A. No. 439/1998
With
Crl. A. No. 439/1998
Petitioner: Bhagwan Sahai Khandelwal
Respondent: The State of Rajasthan & Anr.
Apeal: Criminal Appeal No. 438/1998
With
Crl. A. No. 439/1998
With
Crl. A. No. 439/1998
Judges: G.B. PATTANAIK & R.P. SETHI, JJ.
Date of Judgment: Jan 27, 2000
Head Note:
CRIMINAL LAWS
Criminal Procedure Code, 1973
Section 482 – Indian Penal Code, 1860 – Section 307 – Cognizance of offence – Magistrate not taking cognizance against person chargesheeted – On petition under Section 482, Cr.P.C. Judge while upsetting the order of Magistrate, holding that the allegations made in the petition against Magistrate were substantiated – Judge also directing initiation of departmental proceedings against Magistrate. Held. On appeal remarks of Judge against Magis-trate ordered to be expunged as being unwarranted. Legality of the order passed however, not examined in view of pending Crimi-nal Appeal.
JUDGEMENT:
ORDER
1. This appeal is by the concerned Magistrate, who had not taken cognizance under Section 307 I.P.C. though charge sheet had been filed. We are not entering into the merits of the conclusion of the learned Judge as to whether the Magistrate could have refused to take cognizance under Section 307 I.P.C. We are examining only the correctness and propriety of the order of the learned Judge in making remarks against the Magistrate on the basis of what was stated in a petition filed before the learned Chief Justice which was ordered to be treated as a petition under Section 482 of the Code of Criminal Procedure. It is no doubt true in that petition, serious allegations had been made against the Magistrate, who is the Appellant before us. But without even offering an opportunity to the Magistrate in the proceeding, and without having his say in the matter, the learned Judge could not have jumped to the conclusion that it clearly appears that the allegations against the Magistrate are substantiated, and therefore the order passed by the Magistrate should be interfered with. Not only that the learned Judge has accepted the allegations made but also directed for instituting a departmental enquiry against the Magistrate concerned, after placing him under suspension. This observation and direction of the learned Judge on the basis of allegations made in a petition cannot be sustained, and we have, therefore, no hesitation to expunge the so-called observation and direction of the learned Judge while passing order on 6.11.1997 in Criminal Miscellaneous Petition No. 520/1996. So far as the legality of the order passed by the learned Judge is concerned, it remains to be examined in the Criminal Appeal No. 439/1998 which has been filed by the accused Bhagirath, which is pending before this Court.
2. The present appeal is allowed to the extent indicated above.
1. This appeal is by the concerned Magistrate, who had not taken cognizance under Section 307 I.P.C. though charge sheet had been filed. We are not entering into the merits of the conclusion of the learned Judge as to whether the Magistrate could have refused to take cognizance under Section 307 I.P.C. We are examining only the correctness and propriety of the order of the learned Judge in making remarks against the Magistrate on the basis of what was stated in a petition filed before the learned Chief Justice which was ordered to be treated as a petition under Section 482 of the Code of Criminal Procedure. It is no doubt true in that petition, serious allegations had been made against the Magistrate, who is the Appellant before us. But without even offering an opportunity to the Magistrate in the proceeding, and without having his say in the matter, the learned Judge could not have jumped to the conclusion that it clearly appears that the allegations against the Magistrate are substantiated, and therefore the order passed by the Magistrate should be interfered with. Not only that the learned Judge has accepted the allegations made but also directed for instituting a departmental enquiry against the Magistrate concerned, after placing him under suspension. This observation and direction of the learned Judge on the basis of allegations made in a petition cannot be sustained, and we have, therefore, no hesitation to expunge the so-called observation and direction of the learned Judge while passing order on 6.11.1997 in Criminal Miscellaneous Petition No. 520/1996. So far as the legality of the order passed by the learned Judge is concerned, it remains to be examined in the Criminal Appeal No. 439/1998 which has been filed by the accused Bhagirath, which is pending before this Court.
2. The present appeal is allowed to the extent indicated above.
