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Madhya Pradesh High Court

Manglabal Khan vs Smt.Shamshad Jaha And 2 Ors. on 27 April, 2018

Author: S.K. Awasthi

Bench: S.K. Awasthi

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                                                                M.Cr.C.No.3371/2011

 THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
                                     SINGLE BENCH

                             M.Cr.C. No.3371/2011

               Smt. Manglabal Khan w/o late Shri M.S. Khan
                                  vs.
                     Smt. Shamshad Jahan and two others

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Coram :
                           Hon'ble Shri Justice S.K. Awasthi

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  Shri Varun Sharma, learned counsel for the applicant.
  Shri Akshad Pahadiya, learned counsel for the respondent.
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                                       ORDER

( Passed on 27/04/2018) The applicant has invoked the extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (in short the 'CrPC'), calling in question the order dated 15.3.2011 passed by the Judicial Magistrate First Class, Indore by which maintainability of the complaint on the ground of limitation has been rejected.

2. Learned counsel for the applicant has submitted that the respondent No.1/complainant has filed a complaint against the applicant and the respondent Nos.2 & 3 for offence under Section 406 and 120-B of the Indian Penal Code (in short the IPC), which was registered vide order dated 12.7.2004 and the bailable warrant of Rs.1000/- has been issued against the applicant, respondent Nos.2 & 3 for securing their presence.

Being aggrieved by the aforesaid order, the applicant has filed a petition under Section 482 of CrPC before this Court, which was registered as M.Cr.C.No. 1425/2006 and the said petition was disposed of vide order dated 4.2.2009 and it was directed that "the petitioner may move an appropriate application to the effect that the complaint is barred by time. If such an application is filed then the same shall be decided by the learned Court below after giving an opportunity to the complainant."

3. Learned counsel for the applicant has submitted that in compliance of the aforesaid direction given by this Court, the applicant has moved an application before the Judicial Magistrate First Class under Section 468 of Cr.P.C stating that the complaint filed by the respondent No.1/complainant is barred by limitation. However, the said application is dismissed by the trial Court in the light of the judgment of Adalat Prasad vs. Rooplal Jindal reported in 2004 (4) MPLJ 1, stating that the Court has already taken cognizance against the accused persons, therefore, the Court has no power to review its order and the application is not maintainable.

4. Learned counsel for the applicant has further submitted that the trial Court, without going through the merits of the application filed under Section 468 of CrPC, rejected the same only on the technical ground, which is not only the contrary to the established rules of law as well as violation of the direction of this Court given in M.Cr.C.No.1425/2006 vide order dated 4.2.2009. Under these circumstances, he prayed that the impugned order be set aside.

5. Learned counsel for the respondent No.1 has opposed the submissions made by the learned counsel for the applicant and prayed for dismissal of the petition.

6. Having considered the rival contention of the learned counsel for the parties and perused the record.

7. From the perusal of the record of the trial Court, it appears that the respondent No.1 filed a private complaint against the applicant, respondent Nos. 2 & 3 alleging that after death of her husband Mohd. Salim Khan, they retained the Maruti Car, Scooter, two motorcycles, one gold chain, one wrist watch, one gold ring and misappropriated the aforesaid property.

8. As per the allegation, the incident took place on 24.1.1999 and the respondent No.1 has lodged the report regarding the incident on 12.9.2001, but the Police had not taken any action against the applicant, respondent Nos.1 & 2. Therefore, the respondent No.1 filed a private complaint on 15.1.2003 approximately after four years of the alleged incident and hence, the applicant claimed that the aforesaid complaint is time barred. The aforesaid prayer was declined by the trial Court then the applicant/accused approached before this Court by filing an application under Section 482 of the Cr.P.C., which was disposed of by this Court in M.Cr.C.No.1425/2006 vide order dated 4.2.2009 with a direction that the applicant may move an appropriate application to the effect that complaint is barred by time. If such an application is filed then the same shall be decided by the learned Court below after giving an opportunity to the complainant. However, from the perusal of the impugned :4: M.Cr.C.No.3371/2011 order, it appears that the aforesaid application is dismissed by the trial Court stating that this Court has no power to review its order. The approach adopted by the trial Court is not only highper technical but also disregard the direction given by this Court vide order dated 4.2.2009. It is pertinent to note that, if the objection raised by the accused persons regarding maintainability of the complaint on the ground that it is filed beyond the period of limitation then it should be decided by the Court on its merit. Such type of objection does not came under the review. Under these circumstances, this petition is allowed and the matter is remitted back to the trial Court with a direction that application filed by the applicant to the effect that present complaint is barred by time shall be decided on its merit within a period of three months from the date of receipt of the certified copy of the this order after giving an opportunity to the complainant.

9. A copy of this order be sent to the concerned trial Court for information and consequent action.

Certified copy, as per rules.

(S. K. AWASTHI) JUDGE moni Digitally signed by Moni Raju Date: 2018.04.27 16:21:21 +05'30'