Rajasthan High Court - Jaipur
Kavita Sharma vs State Of Rajasthan Through Pp on 10 May, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 5750/2017
Kavita Sharma D/o Khemchand Sharma B/c Brahmin, Aged
About 22 Years, R/o J.s. Fourwheels, Sona Vihar Colony, Alwar,
District Alwar, Raj.
----Petitioner
Versus
State Of Rajasthan Through Pp.
----Respondent
For Petitioner(s) : Mr. Rajesh Mehrishi
For Respondent(s) : Mr. Prakash Thakuriya, PP for State
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Order
10/05/2018
The Court of Special Judge, SC/ST (Prevention of Atrocities)
Cases, Alwar in Sessions Case No.28/2015, tried Manish @ Asif,
Imamuddin, Parvej and Suresh Kumar Jatav. Petitioner herein was
cited as a witness. Petitioner appeared as PW.1 and during trial
turned hostile to the prosecution and resiled from her previous
statement recorded under Section 164 Cr.P.C. The trial Judge
considering that the petitioner having made statement under
Section 164 Cr.P.C. before the Judicial Magistrate has turned
hostile to the prosecution, took cognizance of offences under
Section 193 IPC and Section 344 Cr.P.C. against the petitioner.
Relevant portion of the judgment dated 10.02.2017 rendered by
the trial Judge reads as under:-
"bl laca/k esa i=koyh ds voyksdu ls ifjoknuh gjohjk mQZ
vatyh rFkk dfork 'kekZ us rgjhjh fjiksVZ esa eqyfteku dks uketn
djrs gq, muds fo:) Li"V :i ls vkjksfir vijk/k fd;s tkus ckcr
(2 of 4) [CRLMP-5750/2017]
dFku fd;s gSA rri'pkr /kkjk 164 n-iz-la- ds c;kuksa es Hkh U;kf;d
eftLVªsV ds le{k bu rF;ksa dh rkbZn dh gSA ifjoknhx.k O;Ld gS]
ftlls ;g ugha dgk tk ldrk gS fd mudks lgh ,ao cqjs dk Kku
ugha jgk gksA ,Q vkbZ vkj ,ao /kkjk 164 na-iz-la- ds c;kuksa esa Hkh
4&5 fnu ds le; dk vUrjky jgk gS] ftl le;kof/k esa Hkh muds
ikl iw.kZ lkspus le>us dk volj jgk gS] ftlds ckotwn U;k;ky; esa
lk{; ds nkSjku ;g nksuksa lk{kh i{knzksgh gks x;s gSa ,ao eqyfteku ds
fo:) vkjksfir vijk/k ckcr vius iwoZ ds dFkuksa ls bUdkj fd;k x;k
gS] ftlls mudk tku cw>dj feF;k lk{; U;k;ky; esa fn;k tkuk
izFker% izdV gksrk gSA ,slh fLFkfr esa U;k;fgr esa ;g lehphu izdV
gksrk gS fd ifjoknhx.k gjohjk mQZ vatyh rFkk dfork 'kekZ ds fo:)
/kkjk 193 Hkk-na-la- lifBr /kkjk 344 na-iz-la- ds vijk/k esa izlaKku
fy;k tkdj muds fo:) dk;Zokgh dh tkosA blfy, mDr vijk/k esa
muds fo:) izlaKku fy;k tkrk gS] i`Fkd ls dk;Zokgh ntZ djus dk
vkns'k fn;k tkrk gSA"
Learned counsel for the petitioner has submitted that before
taking cognizance of offences under Section 193 IPC and Section
344 Cr.P.C., no notice was served upon the petitioner and no
opportunity of hearing was afforded to the petitioner. Hence, in
the present petition it has been prayed that the portion of the
judgment dated 10.02.2017 whereby cognizance of above said
offences has been taken against the petitioner, be set aside.
I have heard learned counsel for the parties.
Offence under Section 193 IPC is part of Chapter-XI of Indian
Penal Code. Section 195 Cr.P.C. specifically state that no court
shall take cognizance of offence under Section 193 IPC except
upon a complaint in writing by the court qua which offence was
committed. Relevant portion of Section 195 Cr.P.C. reads as
under:-
"195. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for offences
relating to documents given in evidence - (1) No Court shall
take cognizance--
.........................................
.........................................
(3 of 4) [CRLMP-5750/2017]
(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or .......................................... ......................................... except on the complaint in writing of that Court, or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate"
Learned counsel for the petitioner further submits that before filing of complaint within the ambit of Section 195 Cr.P.C., the said court has to hold an inquiry under Section 340 Cr.P.C. Learned counsel contends that neither any inquiry under Section 340 Cr.P.C. was conducted nor, any complaint was filed in respect of alleged offence. Learned counsel contends that remedy of appeal is provided to the aggrieved person under Section 341 Cr.P.C. Learned counsel further submits that before taking cognizance of offence under Section 344 Cr.P.C., it was necessary for the court below to afford an opportunity of hearing to the petitioner.
Learned counsel for the petitioner has relied upon the judgment rendered by me as a Judge of Punjab & Haryana High Court in Jaskaran v. State of Haryana, 2008 Cri.L.J. 4261, wherein it was held as under:-
"3. The approach adopted by the trial Judge in no way can be appreciated. Power to punish under Section 344 Cr.P.C. and Section 193 Cr.P.C. are distinct. Separate procedure for trial of both has been specified. Section 344 Cr.P.C. call for summary trial, whereas under Section 193 I.P.C. offender is to tried as warrant case. Petitioner was to be tried under Section 344 Cr.P.C. in summary procedure, Section 193 IPC requires that the petitioner should have been charged after holding an Criminal Revision No. 100 of 1998 4 inquiry under Section 340 Cr.P.C. for trial of offence under Section 193 I.P.C. no notice can be issued, only charge could be framed. Section 344 Cr.P.C. vests powers in (4 of 4) [CRLMP-5750/2017] the Courts to summarily try and punish the accused. It is for this reason that Section 344 Cr.P.C. prescribes sentence also. But in the present case, conviction has been recorded under Section 193 IPC read with Section 344 Cr.P.C, which in no way can be sustained. Either learned Special Judge should have convicted the petitioner under Section 344 Cr.P.C. and ought not to have invoked Section 193 IPC. Once, the Judge opted to try the petitioner for the offence under Section 193 IPC, it was incumbent upon him to hold an inquiry under Section 340 Cr.P.C. and then to frame a charge and try the offender for a warrant case as minimum sentence prescribed under Section 193 IPC is three years.
4. I am of the considered view that a grave prejudice has been caused to the petitioner as he has not been made to understand whether he has been tried under Section 344 Cr.P.C. or under Section 193 IPC. As already stated, conjunction of Section 193 IPC and Section 344 Cr.P.C. was not permissible."
Having heard learned counsel for the petitioner, the relevant portion of the impugned judgment dated 10.02.2017 passed by the Special Judge, SC/ST (Prevention of Atrocities) Cases, Alwar in Sessions Case No.28/2015, State of Rajasthan v. Manish @ Asif & Ors., whereby cognizance of offences under Section 193 IPC and Section 344 Cr.P.C. was taken against the petitioner, is set aside. The matter is remitted back to the trial court to proceed afresh against the petitioner in accordance with the provisions of law.
In view of above, present petition stands disposed of.
(KANWALJIT SINGH AHLUWALIA),J Govind/