Rajasthan High Court - Jaipur
Shyam Lal And Ors vs State Of Rajasthan And Anr on 28 September, 2016
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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JAIPUR BENCH, JAIPUR.
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:: O R D E R ::
S.B. CRL. MISC. PETITION NO. 2944/2012.
ACCUSED-PETITIONERS:
1. Shyam Lal S/o Shri Mathura Prasad
2. Purshottaqm S/o Shyam Lal
3. Dinesh Kumar S/o Mathura Prasad, All by caste
Mahajan, r/o Ward No. 13, Khandela, Tehsil Sri
Madhopur, Sikar.
VERSUS
RESPONDENT:
1. The State of Rajasthan through Public Prosecutor.
2. Mukti Lal S/o Ram Lal Munka, B/c Mahajan, R/o
Ward No. 16, Khandela, Sri Madhopur, Sikar.
(Complainant)
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Date of Order :: 28th September, 2016.
PRESENT
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Mr. Mahendra Goyal, for the petitioners.
Mr. Jitendra Shrimali, Public Prosecutor.
Mr. Amit Jindal ]
Mr. P. Sharma ], for the respondent No.2-Complainant.
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BY THE COURT:
1. Heard learned counsel for the petitioners as also the learned counsel appearing for the complainant- respondent No. 2. Perused the material available on record.
2. The learned counsel for the petitioners has challenged the order dated 8th April, 2009 passed by the learned Judicial Magistrate, Class-I, Sri Madhopur, Sikar in Criminal Case No. 87/2009 by which, the learned trial Court has taken cognizance against them for the offences punishable under Sections 447 and 427 IPC. The revisional Court has rejected the revision petition (No. 8/2009) vide order dated 22 nd February, 2012 that is also under challenge by way of this Criminal Misc. Petition.
3. The learned counsel for the petitioners has referred to the site plan prepared by the Investigating Officer wherein, mark 'X' has been shown. The description of the site plan has been explained in the annexed documents wherein, mark 'X' has been shown where, the accused petitioners are alleged to have broken the Pakka Danda i.e., the boundary wall of Munka Bawri. 3
4. The contention of the learned counsel for the petitioners is that in the site plan, mark 'X' has been shown as the gate which is opened in the boundary wall of his own campus situated in khasra No. 854 and not on the boundary wall of Munka Bawri. He also contends that the said gate existing in his campus is opened on the public way which is adjacent to khasra No. 857, therefore, they got every right to get to open the gate on the public way.
5. But the learned counsel for the complainant- respondent No.2 has drawn attention of this Court to the statements of the concerned Patwari Mr. Ramesh Saini as also other eye witnesses, namely, Surgyan, Narayan, complainant-Mukti Lal and Banwari. These witnesses in their statements under Section 161 Cr.P.C. have stated that the accused petitioners Shyam Lal and some others have broken open the boundary wall of Munka Bawri and the said demolition appears to be theft. In view of the statements, referred above, cognizance under Sections 447 and 427 IPC has been taken by the learned trial Court which has been upheld by the revisional Court. 4
6. In the considered opinion of this Court, the statements made by the aforesaid witnesses as also the description of the site plan when taken into consideration, clarifies the situation whereupon, cognizance under Sections 447 & 427 IPC has been taken. The factual aspect upon which the said cognizance order has been passed can be properly appreciated by the learned trial Court while framing the charges against the accused petitioners and no interference of this Court is required by way of this Misc. Petition filed under Section 482 Cr.P.C.
7. The learned counsel for the petitioners has also added during the arguments that there is no evidence to the effect that wrongful loss for the worth more than Rs. 50/- has been caused by breaking the Pakka Danda (boundary wall). He has also argued that no criminal trespass can be alleged by breaking open the gate on the public way. Therefore, no case is made out for the offences punishable under Sections 447 & 427 IPC. His contention mainly depends upon the situation of the mark 'X' which has been shown in the site plan between the two gates, one shown in the campus of Shyam Lal and the another in Munka Bawri.
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8. When the point 'X' shown in the site plan is interpreted in the light of the statements given by the aforesaid witnesses as also the description of the site plan, it supports the contention of the prosecution story and thus, the order taking cognizance appears to be well founded.
9. The learned counsel for the petitioners has also argued that admittedly Munka Bawri is a public place and the charge of criminal trespass cannot be raised against the petitioners if they enter upon that place.
10. So far as aforesaid contention of criminal trespass is concerned, his contention falls on the ground only when any person enters into a public place without any criminal intent but, as alleged by the prosecution witnesses, the petitioners have broken open the Pakka Danda i.e., the boundary wall of Munka Bawri and if they enter into public place with this intention then, the contention raised by the learned counsel for the petitioners is not held good.
11. In view of the above discussions, the orders passed by the learned trial Court as also by the learned revisional Court do not require any interference by this Court by way of this Criminal Misc. Petition filed under 6 Section 482 Cr.P.C. However, all these points which have been raised by the learned counsel for the petitioners are of factual aspect may be raised by the petitioners before the learned trial Court at the time of framing charges as also during the trial of the case.
12. In view of the above, this Criminal Misc. Petition is dismissed and disposed off accordingly.
13. It is also made clear that the observations made by this Court in this order may not, in any way, come into the defefence raised by the petitioners at the time of framing charges and during the trial of the case.
(DEEPAK MAHESHWARI), J.
/Mohan/ 40