ORDER
Amaresh Ku. Singh, J.
1.Heard the learned counsel for the petitioners.
2. By this petition filed under Section 482 of Criminal Procedure Code, the petitioners have challenged the order dated 27th July, 1996 passed by the Addl. Chief Judicial Magistrate, Makarana in Criminal Case No. 234/91, Noor Hasan v. Abdul Gani. By the aforesaid order dated 27th July; 1996, the Addl. Chief Judicial Magistrate. Makarana, after hearing the counsel for both the parties found sufficient grounds to proceed against the petitioners in respect of offences punishable under Sections 147 & 323 read with 149 of Indian Penal Code and fixed 12th September, 1996 for appearance of accused persons.
3. The grounds on which the order dated 27th July, 1996 has been challenged are (1) That the Addl. Chief Judicial Magistrate has not complied with the provisions of Section 210 of the Criminal Procedure Code (2) That there are no sufficient grounds to proceed against the petitioners in respect of offences under Sections 147 & 323 read with 149 of Indian Penal Code and therefore the order dated 27th July, 1996 is without jurisdiction (3) That the Addl. Chief Judicial Magistrate has not complied with the directions given by this Court on 25th October, 1994 and (4) That according to the judgment given by the Hon’ble Supreme Court in Common Cause, A registered Society v. Union of India, 1996 Cr. Jr. 2380 : AIR 1996 SC 1619 the case against the petitioners cannot proceed as the offences for which the accused persons were proceeded are punishable with imprisonment not exceeding three years and the case against the petitioners has been pending for the last two years.
4. I have perused the record of the criminal case No. 234/91 Noor Hasn v. Abdul Gani. It appears that on 10th December, 1990, non-petitioner Noor Hasan filed a complaint in the Court of Addl. Chief Judicial Magistrate. Makarana against seven persons who arc-petitioners in this case. According to the allegations made in the complaint, the grandfather of the complainant and Abdul Rahim belonged to the same Christian family. They had some joint property in Makarana. A partition of the property had taken place on 24th February. 1968 and the complainant party received half portion of the property in dispute. That portion was situated comparatively on a higher level of ground than the portion which fell in the share of the other party. Consequently, the flow of water from the portion which fell in the share of the complainant was through the property of the accused persons. The passage to the property of the complainant was also through the property of the accused.
5. Later on, dispute occurred between the complainant and the accused party relating to passage and flow of water. It is alleged that the accused persons locked the main gate and thereby prevented the complainant party from passing through the gate. The complainant then filed a suit in the Court of Munsif and Judicial Magistrate, Makarana and in that suit some injunction was granted. It was also alleged that on 25th April, 1990, the accused persons locked the main gate and thereby closed the passage to the house of the complainant and on 30th September, 1990 at about 8.00 A.M. when the complainant, his brother and uncle had gone out of the house and complainant’s wife Smt. Rehana and his sister-in-law Shaheeda were going on their way, accused Jameel, Kayum, Abdul Rahim, Aziz Mohd. attacked them and caused injuries. It was also alleged that complainant’s wife Smt. Rehana was putting on a gold necklace weighing three tolas. That necklace was snatched by the accused Aziman and Kayum. The complainant’s sister-in-law Shaheeda was putting on necklace weighing five tolas and earrings weighing two tolas. These ornaments were also snatched by the accused persons. At the time of incident, when Smt. Rehana & Shahida raised, human cries, Farooq Ahmad and Abdul Hamid reached the spot and intervened.
6. It was also mentioned in the complaint that on 30th September, 1990 at about 9.45 A. M., a first information report was lodged by the complainant at P. S. Makarana in respect of offences under Sections 147, 341, 323, 336 & 379 of Indian Penal Code. The injuries of Smt. Shaheeda and Rehana were got medically examined. On the same day, the complainant party also lodged the first information report. It was further stated in the complaint that the police has submitted a final report in this case.
7. Learned Munsif and Judicial Magistrate, Makarana directed that the complaint be put up before him with the final report submitted by the police. On 15th April, 1991, counsel for the complainant wanted time for producing the evidence. The learned Munsif and Judicial Magistrate, by his order dated 13th April. 1991 fixed 14-5-1991 for recording the evidence of the complaint. On 13th July, 1991, the statement of Noor Hasan and Abdul Hamid were recorded under Sections 200 & 202 of the Criminal Procedure Code and the case was adjourned to 21st August, 1991. On 3rd September, 1991, the remaining witnesses of the complainant were examined and the case was adjourned for arguments.
8. On 4th November, 1991, the learned Munsif and Judicial Magistrate, Makarana after taking into consideration the statement recorded by him under Section 200 & 202 of the Criminal Procedure Code, found sufficient ground to proceed against the accused persons for the offences under Section 147 and 323 read with 149 of the Indian Penal Code. So far as the allegations of forcible snatching of ornaments of Smt. Shaheeda and Rehana was concerned, the learned Munsif and Judicial Magistrate did not find the prosecution evidence to be reliable. A prima facie case in respect of offence under Sections 147 and 323/149 of Indian Penal Code was found. The accused persons filed a S. B. Criminal Misc. Petition No. 539/91 in this Court, against the order dated 4th November, 1991 passed by the learned Munsif and Judicial Magistrate, Makarana. The above mentioned S. B. Cr. Misc. Petition No. 539/91 was disposed oi by the Court vide order dated 27th April, 1992. The order dated 4th November, 1991 passed by the learned Munsif and Judicial Magistrate, Makarana was quashed and set aside and the case was remanded back to the learned Munsif to consider the entire material available on record including the final report and the evidence collected by the investigating agency, before deciding whether the process should be issued against the accused petitioners and to pass an appropriate order in accordance with law.
9. The learned Addl. Chief Judicial Magistrate. Makarana before whom the file was put up again heard the arguments of the parties on 6-1-1994. On 10th January, 1994, learned Munsif passed an order after taking into consideration, the evidence collected by the police during the investigation and the evidence produced by the complainant under Sections 200 and 202 of the Criminal Procedure Code. After taking into consideration, the evidence on record, the learned Munsif and Judicial Magistrate, Makarana, on being satisfied that there are sufficient grounds to proceed against the accused-petitioners in respect of offences under Section 147 & 323 read with 149 of Indian Penal Code and directed the issue of process against the accused persons.
10. The accused-petitioners filed another S. B. Cr. Misc. Petition No. 134/94 Abdul Gani v. State of Rajasthan challenging the order dated 10th January, 1994 passed by the learned Addl. Chief Judicial Magistrate, Makarana. The petition was disposed of by order dated 25th October, 1994. This Court declined to interfere with the order dated 10th January, 1991 passed by the learned Addl. Chief Judicial Magistrate but observed that the order taking cognizance against the accused persons passed by the trial Court without giving any opportunity of hearing to the accused and the petitioners may, therefore, in pursuance to the process issued against them, appear before the trial Magistrate and show to the Court that the allegations, made in the complaint and the evidence collected by the investigating agency, do not constitute any crime involving the accused and satisfy the Court that if the relevant material would have been taken into consideration, the process against them would not have been issued. When such thing is brought to the notice of the trial Court then the trial Court will consider the arguments advanced by the petitioners and if it is satisfied that no case is made out against the accused petitioners from the material available on record then the trial Court may drop the proceedings. But if the trial Court is of the opinion that the ingredients of the offences are made out then the learned trial Court will proceed with the trial.
11. In view of the above mentioned observations, the petitioners submitted before the learned Addl. Chief Judicial Magistrate, Makarana that process should not have been issued against them. After hearing both the parties, the learned Addl. Chief Judicial Magistrate, Makarana rejected the submissions made before him against the accused persons and found sufficient grounds to proceed against the accused persons for the offences under Section 147 and 323 read with 149 of Indian Penal Code and fixed 12-9-1996 for appearance of the accused who were not present on that date.
12. Against the above mentioned order dated 7th July, 1996, the accused persons have again come to this Court and they have challenged the order dated 27th July, 1996 on the grounds mentioned above.
13. After carefully going through the record and carefully going through the arguments advanced by the learned counsel for the petitioners, I do not find any ground to interfere with the impugned order passed by the learned Addl. Chief Judicial Magistrate, Makarana.
14. The first submission of the learned counsel for the petitioner is that the learned Addl. Chief Judicial Magistrate, Makarana has not complied with the directions given by this Court on 25th October, 1994. The argument of the learned counsel for the petitioner is that in view of the ‘ observations made in the order dated 25th October, 1994 it was necessary for the learned Addl. Chief Judicial Magistrate to have thoroughly discussed the evidence on record in order to find out whether there was no sufficient ground to proceed against the petitioner and since this has not been done, the order dated 27th July, 1996 from the infirmity of non-compliance of the direction given in the order dated 25th October, 1994 passed by this Court.
15. It is true that if after appearing before the trial Court, the accused persons submit that there are no sufficient grounds to proceed against them and the case against them should be dismissed or the order passed against the accused persons under Section 204 of Criminal Procedure Code should be rescinded, the Magistrate is duty bound to consider the submissions of the prosecution and the accused and pass necessary orders. But there is nothing to require the Magistrate to discuss the evidence in detail or give detailed reasons for the purpose of rejecting the prayer of the accused. Learned counsel for the petitioner has not drawn my attention to any provision of the Criminal Procedure Code or any binding judicial decision which may be said to require the trial Court to give detailed reasons for issuing process against the accused persons under Section 204 Cr. P. C. or for rejecting the submissions made by the accused persons for their appearance in this Court. Even if the omission to give reasons in detail, is held to be an irregularity, such irregularity is curable under Section 465 of the Criminal Procedure Code, unless it can be shown that injustice has been caused to the accused persons by omission to give reasons in detail for passing the order by which submissions made by the accused were rejected.
16. In the instant case, the learned Addl. Chief Judicial Magistrate, Makarana had before him the statements of witnesses recorded by the police under Section 161 of Criminal Procedure Code, the final report submitted by the police in connection with the First Information Report 189/90 and the statement of witness recorded under Section 200 and 202 of the Criminal Procedure Code. I have carefully gone through the above evidence on record and I am of the opinion that it is difficult to say that no prima facie case under Section 323 and 323 read with 149 of the Indian Penal Code is made out against the accused-persons. The statements of complainant and his witnesses were recorded under Section 200 and 202 of the Criminal Procedure Code after administering oath to the complainant and his witnesses. Prima facie these statements are entitled to greater weight than the statements recorded by the police under Section 161 of the Criminal Procedure Code. For the purpose of proceeding under Section 204 of Criminal Procedure Code, the statements recorded by the Magistrate under Section 200 and 202 of the Criminal Procedure Code, constitute the substantive evidence whereas the statements recorded by the police under Section 161 of the Criminal Procedure Code cannot be said to be the part of substantive evidence produced against the accused under Section 200 and 202 of the Criminal Procedure Code. These statements can be used for only one purpose, namely to contradict the witnesses as permitted by Section 162. I, therefore, hold that the learned Add). Chief Judicial Magistrate, Makarana did not commit any illegality or irregularity by rejecting the submissions made by the accused persons in respect of issue of process against them.
17. The above conclusion also disposes of second submission of the learned counsel for the petitioners which is to the effect that there were no sufficient grounds to proceed gainst the petitioners.
18. The third submission of the learned counsel for the petitioners is that the case is pending against the petitioners for more than two years and therefore, in view of the decision given by the Hon’ble Supreme Court cannot continue. I do not find any substance in the submission. In the instant case, the first order dated 4th November, 1991 whereby the process was issued against the accused petitioners was challenged in this Court by the accused persons and that order was quashed and set aside by this Court vide order dated 27th July, 1992 passed in S. B. Cr. Misc. Petition No. 539/91. Therefore, for the purpose of deciding the duration of pendency of the case against the petitioners, order dated 4th November, 1991 cannot be taken into consideration. The relevant date for the purpose of calculating the period during which the case remained pending against the petitioners, the order dated 10th January, 1994 passed by. the learned Addl. Chief Judicial Magistrate, Makarana whereby the processes were issued against the petitioners for the offences under Sections 323 and 321 (341) read with 129 of Indian Penal Code.
19. It appears from the record that the accused-petitioners again challenged the order dated 1 Oth January, 1994 by filing a S. B, Cr. Misc. Petition No. 134/94 and consequently, the proceedings in the lower Court were delayed. S. B. Cr. Misc. Petition No. 134/94 was disposed of on October 25,1994 and again the accused persons contended before the trial Magistrate that the order dated 10th January, 1994 passed against them should be revoked or rescinded. The orders were passed by the learned Addl. Chief Judicial Magistrate on 27th July, 1996 whereby he rejected the submissions made by the petitioners. Thus on delay which took place during the period from 10th January, 1994 to 27th July, 1996 was on account of the petitions filed by the accused-petitioners before this Court and the objections raised by them before the trial Magistrate. It is further obvious from the record that the order dated 27th July, 1996 was again challenged by the petitioners by filing this petition under Section 482 of the Criminal Procedure Code. The delay which has occurred in the disposal of the case by the trial Magistrate is, therefore, attributable to the various petitions and objections filed by the petitioners.
20. In the circumstances, I do not find any force in the submissions that the petitioners arc entitled to get proceedings dropped against them on the ground of delay in disposal of the case.
21. The last submission of the learned counsel for the petitioners is that the provision of Section 210 of Criminal Procedure Code has not complied with. This submission has no force at all. It appears that the learned Magistrate did not take cognizance of any offence against the petitioners on the basis of report submitted by the police under Section 173(2) of the Criminal Procedure Code. Cognizance of the offences, alleged to have been committed by the petitioners, was taken on the basis of complaint filed by the non-petitioners in the Court of Munsif and Judicial Magistrate, Makarana. In these circumstances, it was not necessary for the learned Addl. Chief Judicial Magistrate, Makarana to have consolidated the final report with the complaint filed by the non-petitioner. There is no violation of Section 210 of the Criminal Procedure Code.
22. For the reasons mentioned above, I do not find any force. This petition deserves to be dismissed and is hereby dismissed. The record of the lower Court alongwith the copy of this order be sent to the concerned trial Court within fifteen days from today.