Rajasthan High Court - Jodhpur
Dayanand & Ors vs State on 21 November, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2276 / 2013
1. Dayanand s/o Shri Rampratap Ji Tilawat Vaishnav
2. Dhananjay s/o Shri Dayanand Ji Tilawat Vaishnav
3. Bhuvneshwar s/o Shri Dayanand Ji Tilawat Vaishnav
All r/o Inside Sojati Gate, P.S. Sadar Bazar, Jodhpur (Raj.).
----Petitioner
Versus
1. The State of Rajasthan
2. Shri Rajendra Saraf s/o Shri Chandan Raj Ji, aged about 46
years, b/c Oswal, r/o H-103, Shastri Nagar, Jodhpur.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr.H.R.Soni
For Respondent(s) : Mr.M.S.Panwar PP for the State.
Mr.Dharmendra Surana
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reserved on 15/11/2017 Pronounced on 21/11/2017
1. This criminal misc. petition under Section 482 Cr.P.C. has been preferred against the order dated 30.05.2013 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur in Criminal Revision No.07/2011, affirming the order dated 02.02.2011 passed by the learned Judicial Magistrate, Jodhpur City, Jodhpur in Criminal Original Case No.570/2010.
2. Learned counsel for the petitioners states that the charge-sheet was filed by the police after investigation for the offences under Sections 448 and 427 IPC.
(2 of 3) [CRLMP-2276/2013]
3. Learned counsel for the petitioners further states that since the learned court below had not found the offence to be made out under Section 448 IPC, therefore, continuance of the proceedings for the offence under Section 448 IPC was not permissible.
4. Learned counsel for the petitioner also states that the offence under Section 427 IPC is a non-cognizable offence, therefore, the investigation itself was erroneous and all the consequential proceedings were nullity.
5. Learned counsel for the petitioners further states that originally the offence was found to be made out only under Section 427 IPC, which is a non-cognizable offence, and therefore, the challan itself could not have been filed by the police, unless appropriately directed by the learned Magistrate.
6. Learned Public Prosecutor however, opposed the submissions made on behalf of the petitioners on the ground that the petitioners failed to raise the issue before the learned court below, and therefore, new point could not have been raised at the time of revision.
7. Learned Public Prosecutor further states that since originally the police had found the offence to be made out under Section 448 IPC, therefore, it was within its purview to have made the investigation as the offence under Section 448 IPC is a cognizable offence.
8. After hearing the learned counsel for the parties as well (3 of 3) [CRLMP-2276/2013] as perusing the record of the case, this Court is of the opinion that at the inception, the offence was found to be made out under Section 448 IPC after thorough investigation. Since the offence under Section 448 IPC is cognizable, therefore, the police has rightly put the investigation before the learned court below, and exclusion of Section 427 IPC at a subsequent stage, would not have the retrospective effect on the case. Moreover, the learned courts below have applied their mind and have come to the conclusion that such issue was not raised before the learned court below at the appropriate stage, and hence, any proceeding was not illegal ab initio. Thus, this Court is of the opinion that the proceedings and the impugned orders are well justified and do not call for any interference by this Court.
9. Consequently, the present misc. petition is dismissed.
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-