Ram. Vs. State of Rajasthan & Anr  Insc 143 (9 March 2004)
Sabharwal & Arijit Pasayat Y.K. Sabharwal, J.
matter pertains to an incident that took place in the year 1985. The criminal
proceedings before the Magistrate have not crossed the stage of taking
cognizance. One of the contentions urged in this appeal for quashing the
criminal proceedings is long delay of 19 years.
appellant is a District Ayurvedic Officer. The complainant is a Class IV
employee in Ayurvedic Aushdhalaya, Fatehgarh. According to the complainant on
7th November, 1985 when the appellant visited the said place several patients
were present. The appellant asked the complainant to bring water.
the complainant brought water, he was insulted by the appellant who said to him
"I do not want to spoil my religion by drinking water from your hands. How
have you dared to give water" and started abusing him. The complainant has
filed a complaint in the court of Chief Judicial Magistrate alleging commission
of offence punishable under Section 7 of the Protection of Civil Rights Act,
1955 (hereinafter referred to as 'the Act').
practice of untouchability in any form has been forbidden by Article 17 of the
Constitution of India which inter alia provides that "untouchability"
is abolished, the enforcement of any disability arising out of "untouchability"
shall be an offence punishable in accordance with law. To comply the mandate of
the Constitution, the Act has been enacted inter alia with a view to prescribe
punishment for the preaching and practice of "untouchability", for
the enforcement of disability arising therefrom and for matters connected
aforesaid complaint was sent to the police under Section 156(3) of the Code of
Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for
investigation. A case was registered and investigation conducted. The
investigating officer examined the complainant and other witnesses and also
obtained copies of certain documents. After completing the investigation the
police submitted a final reported under Section 173 of the Code stating that
the complaint was false and in fact on 7th November the complainant was found
absent from duty and, therefore, he was asked to take casual leave for half day
and it is on that account a false complaint was lodged by him.
the submission of the abovenoticed final report by the police the complainant
submitted another complaint. The statements of the witnesses who were said to
be present at the time of the occurrence were examined by the Additional Chief
Judicial Magistrate who by order dated 26th June, 1986 found a prima facie case, took
cognizance and issued process against the appellant. The order issuing the
process was challenged by the appellant in a revision petition filed before the
Sessions Judge which was dismissed. On a petition filed under Section 482 of
the Code, the orders of the Additional Chief Judicial Magistrate taking
cognizance as also of the Sessions Judge were set aside by the High Court by
judgment dated 26th May, 1988 and the case was remanded to the trial court to
proceed according to law keeping in view the observations made in the judgment.
High Court inter alia observed that the trial court should consider the entire
material available on record before deciding whether the process should be
issued against the accused or not.
remand, on consideration of the material on record, the Magistrate again
reached the same conclusion and took cognizance by order dated 22nd January, 1990. This led to filing of another
petition under Section 482 of the Code by the appellant. Again the High Court
by judgment dated 27th May, 1994 set aside the order dated 22nd January, 1990
inter alia noticing that the Additional Chief Judicial Magistrate while disagreeing
with the final report should have given some reasons for not accepting it and
this time also the case was remanded to the Magistrate directing him to
consider the material available on record and thereafter pass appropriate order
deciding whether the process should be issued or not on the basis of the
this appeal, we are not going into the correctness of the judgments of the High
Court dated 26th May,
1988 or 27th May, 1994. These judgments have attained
finality. Suffice it to say that as directed by the High Court, the Magistrate
again considered the matter for the third time. Again, by order dated 16th December, 1994 the Magistrate reached the same
conclusion as had been reached on two earlier occasions and took cognizance of
offence under Section 7 of the Act against the appellant and directed that the
appellant be summoned.
was a third petition under Section 482 of the Code before the High Court
challenging the order taking cognizance. This time the appellant was not lucky.
The High Court by the impugned judgment dated 4th May, 1996 rejected the contention that the Additional Chief Judicial
Magistrate passed the order without considering the entire material on record.
The High Court held that no case for exercising inherent powers under Section
482 of the Code was made out.
the judgment of the High Court, the appellant is before this Court on grant of
leave. This Court had stayed the proceedings before the Magistrate pending
decision of the appeal.
contention urged is that though the trial court was directed to consider the
entire material on record including the final report before deciding whether
the process should be issued against the appellant or not, yet entire material
was not considered. From perusal of order passed by the Magistrate it cannot be
said that the entire material was not taken into consideration. The order
passed by the Magistrate taking cognizance is a well written order. The order
not only refers to the statements recorded by the police during investigation
which led to the filing of final report by the police and the statements of
witnesses recorded by the Magistrate under Sections 200 and 202 of the Code but
also sets out with clarity the principles required to be kept in mind at the
stage of taking cognizance and reaching a prima facie view. At this stage, the
Magistrate had only to decide whether sufficient ground exists or not for
further proceeding in the matter. It is well settled that notwithstanding the
opinion of the police, a magistrate is empowered to take cognizance if the
material on record makes out a case for the said purpose. The investigation is
the exclusive domain of the police. The taking of cognizance of the offence is
an area exclusively within the domain of a Magistrate. At this stage, the
Magistrate has to be satisfied whether there is sufficient ground for
proceeding and not whether there is sufficient ground for conviction. Whether
the evidence is adequate for supporting the conviction, can be determined only
at the trial and not at the stage of inquiry. At the stage of issuing the
process to the accused, the Magistrate is not required to record reasons.
Controller of Imports & Exports v. Roshanlal Agarwal & Ors.  4
High Court has rightly concluded that the order passed by the Magistrate does
not call for any interference in exercise of inherent powers under Section 482
of the Code.
Jain urged an additional ground for quashing the order. Learned counsel
contends that the appellant is facing the criminal proceedings for the last 19
years and, therefore, the proceedings deserve to be quashed on the ground of
delay. Support is sought from S.G. Nain v. Union of India ( Supp. 4 SCC
552), Bihar State Electricity Board & Anr. v. Nand Kishore Tamakhuwala
( 2 SCC 414) and Ramanand Chaudhary v. State of Bihar & Ors. (
1 SCC 153). In these cases, the criminal proceedings were quashed having regard
to peculiar facts involved therein including this Court also entertaining some
doubts about the case being made against the accused. In none of these
decisions any binding principle has been laid down that the criminal
proceedings deserve to be quashed merely on account of delay without anything
more and without going into the reasons for delay.
to be borne in mind that the appellant has been successively approaching the
High Court every time when an order taking cognizance was passed by the
Magistrate. It is because of the appellant that the criminal proceedings before
the Magistrate did not cross the stage of taking cognizance. As earlier
noticed, since earlier judgments of the High Court have attained finality, we
are not going into correctness of these judgments. When third time the
appellant was not successful before the High Court, he has approached this
Court and at his instance the proceedings before the trial court were stayed.
In fact, from 1986 till date the criminal case has not proceeded further
because of the appellant. It would be an abuse of the process of the court if
the appellant is now allowed to urge delay as a ground for quashing the
criminal proceedings. In considering the question whether criminal proceedings
deserve to be quashed on the ground of delay, the first question to be looked
into is the reason for delay as also the seriousness of the offence. Regarding
the reasons for delay, the appellant has to thank himself. He is responsible
for delay. Regarding the seriousness of the offence, we may notice that the ill
of untouchability was abolished under the Constitution and the Act under which
the complaint in question has been filed was enacted nearly half a century ago.
The plea that the complaint was filed as a result of vindictiveness of the
complainant is not relevant at this stage. The appellant would have adequate
opportunity to raise all pleas available to him in law before the trial court
at an appropriate stage. No case has been made out to quash the criminal
proceedings on the ground of delay.
regard to the enormous delay, we direct the trial court to expedite the trial
and dispose of the case within a period of six months. For the reasons aforestated,
the appeal is dismissed.