While coming out vocally in support of the legal rights of the accused, the Rajasthan High Court in a most learned, logical, laudable, landmark and latest judgment titled Banwari Lal vs State of Rajasthan in S.B. Criminal Misc(Pet.) No. 4040/2023 and cited as [2023:RJ-JD:23155] that was pronounced as recently as on July 24, 2023 and downloaded on July 25, 2023 has sought an explanation from a Judicial Magistrate for denying to an accused the certified copy of an order by which it had taken cognizance for offences under Sections 467, 409 in the alternative Sections 420 and 120B of IPC against him and also issued an arrest warrant against him. It must be mentioned here that the Magistrate had put a condition that the accused may inspect and apply for certified copies only after he comes in the custody. This was considered to be nothing but a theatre of the absurd.

It is in this context that the Single Judge Bench of Hon’ble Mr Justice Manoj Kumar Garg said that the condition imposed by the Magistrate is wholly absurd, illegal and in utter violation of principles of natural justice. We must note that the accused had applied for the certified copy of the order that was dated 04.05.2023 along with statement of witnesses, copy of protest petition, statement under Section 161 CrPC. The Bench was unequivocal in most forthrightly observing that:
Admittedly, the police has filed Final Report (FR) in this case and a failure to supply copies of relevant documents in this case would mean a virtual denial of prior knowledge of the evidence that is used against the accused. The prosecution cannot be permitted to take advantage of the investigation, statements etc and at the same time deny it to the accused. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Manoj Kumar Garg of Rajasthan High Court at Jodhpur sets the ball in motion by first and foremost putting forth in the opening para that:
The present misc. petition under Section 482 Cr.P.C. has been filed by the petitioner against the order dated 04.05.2023 passed by the learned Magistrate, Nohar, District Hanumangarh by which the learned Magistrate took cognizance against the petitioner for offence under Section 467, 409 in the alternative Section 420 & 120B IPC and issued warrant of arrest against the petitioner.

On the one hand, the Bench points out while mentioning about the petitioner’s version in the next para that:
Counsel for the petitioner submits that the police after thorough investigation had filed a negative FR that no case is made out against the petitioner. However, upon filing protest petition by the complainant, the learned Magistrate took cognizance of the offence and issued warrant of arrest. It is argued that the learned Magistrate has not applied his mind and there was no reason to discard or disbelieve the finding reached by the police.

Moreover, when the petitioner applied for the certified copy of the order dated 04.05.2023 alongwith statement of witnesses, copy of protest petition, statement under Section 161 Cr.P.C, the same was refused by the court below and a condition was put by the Judicial Magistrate to the effect that the accused may inspect and apply for certified copies only after he comes in the custody. Therefore, the petitioner could not file certified copy of the order dated 04.05.2023 alongwith the present petition and the misc. petition has been listed in the Defect category.

It is therefore, prayed that the impugned order dated 23.05.2023 may kindly be quashed and set aside. It is further prayed that since the police had earlier filed FR in this case and the petitioner is ready to appear before the court below, therefore, the warrant of arrest issued by the Judicial Magistrate, Nohar vide order dated 04.05.2023 may kindly be converted into bailable warrant.

On the other hand, as we see that the Bench then also discloses in the subsequent para of this notable judgment that:
Learned Public Prosecutor opposed the prayer made by the petitioner, however, he concedes that the condition imposed by the Judicial Magistrate for issuance of certified copy of the order dated 04.05.2023 so also the statements and copy of protest petition, is not sustainable.

Needless to say, the Bench then states in the next para after listening to both the sides that:
I have heard learned counsel for the parties and carefully gone through the material on record.

Most significantly, most commendably, most remarkably and also most forthrightly, the Bench then minces absolutely no words to mandate in the next para of this robust judgment that:
It is not disputed that after investigation, the police concluded that no offence as alleged were committed by the petitioner and a negative Final report came to be submitted before the learned Magistrate.

Thereafter, upon filing protest petition, the learned Magistrate vide order dated 04.05.2023 took cognizance against the petitioner and issued warrant of arrest against the petitioner, however, what is quite strange on the part of the Judicial Magistrate is that he not only refused to issue the copy of statement of witnesses, protest petition etc but even refused to issue the certified copy of the order dated 04.05.2023 with the observation after the accused comes in the custody of Court, he is free to apply for the certified copies of the documents in accordance with law. In the opinion of this Court, the condition imposed by the learned Magistrate is wholly absurd, illegal and in utter violation of principles of natural justice.

Admittedly, the police has filed FR in this case and a failure to supply copies of relevant documents in this case would mean a virtual denial of prior knowledge of the evidence that is used against the accused. The prosecution cannot be permitted to take advantage of the investigation, statements etc and at the same time deny it to the accused. In other words, we thus see for ourselves that the Bench has made it indubitably clear that:
The prosecution cannot be permitted to run with the hare and hunt with the hounds. Very rightly so!

As a corollary, the Bench then directs in the next para of this commendable judgment that:
Accordingly, the order dated 23.05.2023 is hereby quashed and set aside. The Judicial Magistrate, Nohar is directed to immediately issue the copy of documents as applied by the petitioner including the certified copy of the order dated 04.05.2023 and an explanation be furnished to this Court within a period of three weeks, as to why and under what legal provision, he denied issuance of certified copy of order dated 04.05.2023 and the copies of documents applied for by the accused petitioner.

It is worth noting that in the fitness of things we see that the Bench then proceeds to point out in the next para of this refreshing judgment that:
So far as the impugned order dated 04.05.2023 is concerned, this Court is not inclined to interfere in the order of cognizance, however, since in this case, the police had earlier filed FR and thereafter, the court below has taken cognizance against the petitioner but straightaway issued warrant of arrest, therefore, in the interest of justice, the warrant of arrest so issued against the petitioner is converted into bailable warrant of Rs. 30,000/-. The petitioner is directed to appear before the court below within a period of 15 days and submit the bail bonds. Upon furnishing bail bonds, the trial court is directed to release the petitioner on bail. However, if the petitioner fails to appear before the court below within the stipulated period, then arrest warrant may be issued against the petitioner.

In addition, we observe that the Bench then further hastens to add in the next para of this creditworthy judgment that:
With these observations, the misc. petition is disposed of. Stay petition also stands disposed of.

Finally, we see that while coming to the concluding part, the Bench concludes by directing in the final para of this courageous judgment that:
The misc petition be listed before this Court on 22.08.2023 alongwith explanation of the concerned Magistrate.

All said and done, we certainly need to take a most holistic view of this most commendable judgment which undoubtedly must be emulated by all the courts in all similar such cases! There can be no gainsaying that it is high time and, of course, all the Magistrates in India must now definitely always unfailingly, unhesitatingly and unflinchingly make it a abiding rule to pay heed without fail to what the Rajasthan High Court has held so very correctly, cogently, commendably and convincingly in this leading case and desist from doing what the Magistrate has so very wrongly done in denying the accused his legal right to inspect the certified copy of the order by which it had taken cognizance for the offences against him which was found by the Rajasthan High Court in this leading case to be in utter violation of the principles of natural justice and was wholly absurd and illegal! There can be just no denying or disputing it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh