Rajasthan High Court - Jodhpur
Kiran Singh & Anr vs State & Anr on 27 January, 2017
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Criminal Misc(Pet.) No. 2061 / 2012
1. Kiran Singh s/o Shri Achal Singh, by caste Rajpurohit, age 48
years, R/o Dhola Chotra, Pali.
2. Suraj Mal S/o Shri Punam Chand, by caste Prajapat R/o
Indra Colony Extension, Pali (Accused)
----Petitioner
Versus
1. State of Rajasthan
2. Babu Lal S/o Shri Mool Chand, by caste Soni, R/o Bagar
Mohalla, Pali
----Respondent
_____________________________________________________
For Petitioner(s) : Mr K.S.Rathore for petitioners
For Respondent(s) : Mr J.P.S.Choudhary - PP
Mr Mahaveer Bishnoi
_____________________________________________________
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order 24/01/2017 This criminal misc. petition under section 482 CrPC has been filed by the petitioners being aggrieved with the order dated 23.03.2012 passed by Sessions Judge, Pali (for short 'the revisional court' hereinafter) in Cr. Revision No.25/2011, whereby the revision petition filed by the petitioner No.1 has been dismissed. The said revision petition was preferred by the petitioner No.1 against the order dated 13.11.2010 passed by the Additional Chief Judicial Magistrate (Communal Riots), Pali (for short 'the trial court' hereinafter) in Cr. Original Case No.515/2010, whereby it took cognizance against the petitioners for the offences punishable under sections 447 and 427 IPC and (2 of 9) [CRLMP-2061/2012] summoned them.
Brief facts of the case are that respondent No.2 filed a complaint against the petitioners to the effect that he has purchased a plot No.17 through registered sale-deed from petitioner No.2. The said plot is situated in Khasra No.128, which was the Khatedari land of petitioner No.2. It is alleged that thereafter the petitioner No.2 filed a revenue suit for declaration and injunction in the revenue court and the summons of said suit was served upon respondent No.2 on 18.04.2001. Then the respondent No.2 visited the disputed plot and found that petitioners have taken possession of the said plot of him and other plots of various persons and they also destroyed the boundary marks on the said plots. It is also alleged that at the site 4-5 notorious type of persons were standing. It is further alleged that respondent No.2 came to know that as a highway is being proposed from the said land, the petitioner No.2, with the intention to grab the land for getting compensation, took the possession of the said land illegally, though the same was sold to the respondent No.2 and other persons and destroyed the boundary marks of the said plots and also erected some temporary hut-mates and filed the revenue suit before the revenue court. It is also alleged that the petitioner No.1 threatened the respondent No.2 with dire consequences.
The complaint of the respondent No.2 was forwarded by the trial court for investigation to the Police Station, Sadar, Pali, where FIR No.68/2001 was registered, however, the police after investigation filed a negative final report while concluding that the (3 of 9) [CRLMP-2061/2012] dispute between the petitioners and the respondent No.2 is purely of civil nature.
The trial court vide order dated 25.08.2004 accepted the said final report and rejected the protest petition filed by respondent No.2. Thereafter, the respondent No.2 preferred a revision petition, which was allowed by the revisional court and the matter was remanded to the trial court for passing a fresh order after taking into consideration the material available on the police file and after giving opportunities of hearing to the respondent No.2. Thereafter, statements of respondent No.2 were recorded under section 200 CrPC, however, the trial court again accepted the final report submitted by the police vide order dated 06.12.2007 and rejected the protest petition filed by the respondent No.2.
The revisional court vide order order dated 06.08.2008 again set aside the order dated 06.12.2007 passed by the trial court and remanded the matter to the trial court to decide the case after taking into consideration the directions given by it in its earlier order dated 04.01.2005.
Pursuant to that the trial court heard the counsel for the respondent No.2 and after taking into consideration the evidence collected by the police, during the course of investigation and the statements of the complainant-respondent No.2 in support of the complaint, passed the impugned order and took cognizance against the petitioners for the offences punishable under sections 447 and 427 IPC. Being aggrieved with this, the petitioner preferred a revision petition before the revisional court, (4 of 9) [CRLMP-2061/2012] however, the said revision petition has been dismissed by the revisional court vide impugned order dated 23.03.2012. Hence, this petition.
Learned counsel for the petitioners has argued that the learned trial court as well as the revisional court have grossly erred in passing the impugned orders. It is also contended that there is no iota of evidence available on record to suggest that the petitioners have committed the offences punishable under sections 447 and 427 IPC. Learned counsel for the petitioners has invited attention of this Court towards the fact that the revenue suit was filed by the petitioner No.2 against respondent No.2 and other persons. Several documents have also been referred by the counsel for the petitioners and on the strength of the same, he has argued that when the revenue suit is pending between the petitioner No.2 and respondent No.2 and other persons in respect of the disputed land, the criminal prosecution launched by the respondent No.2 against the petitioners is not maintainable.
Learned counsel for the petitioners has further argued that in respect of one of the plots allegedly sold by the petitioner No.2 to some other persons, a criminal case has been lodged against him for the offence punishable under section 420 IPC and in that case, the petitioner No.2 was acquitted by the Additional Chief Judicial Magistrate vide judgment dated 18.03.2013, wherein a specific finding has been recorded that the land of Khasra No.128 is the Khatedari land of the petitioner No.2 and he is in possession of the said land. It is also argued that once the petitioner has been tried and acquitted from a criminal case in (5 of 9) [CRLMP-2061/2012] respect of the same land, he cannot be prosecuted for the same offence as per section 300 CrPC. Learned counsel for the petitioners has placed reliance on decisions of Hon'ble Supreme Court rendered in Lalta and Ors vs. The State of U.P., AIR 1970 SC 1381, Goige Pentaiah vs. State of A.P. & Ors., AIR 2008 SC (Supp) 634 and Kolla Veera Raghav Rao vs. Gorantla Venkateswara Rao & Anr., AIR 2011 SC 641. Learned counsel for the petitioner has, therefore, prayed that this criminal misc. petition may be allowed and the impugned orders passed by both the courts below be set aside.
Per contra, learned Public Prosecutor and counsel appearing on behalf of respondent No.2 have vehemently argued that sufficient material is available on record to take cognizance against the petitioners for the offences punishable under sections 447 and 427 IPC and, therefore, no interference is called for in this criminal misc. petition. It is also argued that as a matter of fact the petitioner No2 was acquitted in a case by the trial court vide judgment dated 18.03.2013 filed by some other person and not by the respondent No.2. It is also contended that in the said case, the charge against the petitioner was under section 420 IPC and the date of the alleged incident in that case was also not the same as in this case. It is, therefore, argued that the protection given under section 300 CrPC is not available to the petitioners.
Learned counsel for the complainant-respondent No.2 has also argued that as a matter of fact the petitioner No.2 has not filed any revision petition against the order dated 13.11.2010 passed by the trial court, whereby it took cognizance against the (6 of 9) [CRLMP-2061/2012] petitioners for the offences punishable under section 447 and 427 IPC and, therefore, this criminal misc. petition filed by the petitioner No.2 is not maintainable.
It is also argued by learned Public Prosecutor that though the petitioner No.1 has filed this criminal misc. petition under section 482 CrPC but in fact it is a second revision petition, which is clearly barred by section 397(3) CrPC.
On the strength of the above arguments, learned Public Prosecutor as well as the learned counsel for respondent No.2 have prayed for dismissal of this criminal misc. petition.
Heard learned counsels for the rival parties and perused the impugned order.
The trial court has taken into consideration the statements of the witnesses recorded by the police under section 161 CrPC and the Naksha Mauka prepared by the Police during the course of investigation. The trial court has observed that the witnesses, whose statements have been recorded under section 161 CrPC have alleged that the petitioners have taken over the possession of the land and destroyed the boundary marks. The trial court has also observed that in the Naksha Mauka prepared by the Investigating Officer, it is clearly mentioned that in Khasra No.128, the boundary of the plot Nos.17 and 18 has been removed and the marks of plying a tractor is available on the land. The trial court has also considered the statements of the respondent No.2 recorded under section 200 CrPC and found that the petitioners entered into the land, which was sold by the petitioner No.2 to respondent No.2 through registered sale deed (7 of 9) [CRLMP-2061/2012] and destroyed the boundary marks. The trial court is of the opinion that prima facie evidence to take cognizance against the petitioners for the offences punishable under sections 447 and 427 IPC is available on record. The revisional court has also considered the material available on record in detail and affirmed the order passed by the trial court.
After going through the material available on record particularly the statement of respondent No.2 recorded in support of the complaint and after taking into consideration material collected by the police, this Court is of the opinion that prima facie evidence for commission of offence punishable under sections 447 and 427 IPC is available against the petitioners. Hence, the trial court has not committed any illegality in taking cognizance against the petitioners for the aforesaid offences and the revisional court has also not committed any illegality in affirming the order passed by the trial court.
It is to be noticed that petitioner No.2 has not challenged the order of taking cognizance by the trial court by way of revision petition before the revisional court and the revision petition was preferred only by petitioner No.1 and therefore, the petitioner No.2 is not at all entitled to get any relief by way of filing this criminal misc. petition directly without approaching the revisional court.
So far as argument of the learned counsel for the petitioners to the effect that the petitioner No.2 is being prosecuted for the same offence for which he has already been acquitted is concerned, the same has been considered but for (8 of 9) [CRLMP-2061/2012] rejection only. It is to be noticed that the complaint against the petitioner for commission of offence punishable under section 420 IPC was filed by one Satya Prakash in respect of plot Nos.33, 34, 35 and 36 in which he has alleged that the petitioner No.2 has received the compensation of the land by the State Government, which was already sold by him to some other persons. It is also to be noticed that the complaint against the petitioner No.2 for commission of offence was filed by one Satya Prakash and not by respondent No.2. The complaint was not regarding the commission of offence punishable under section 420 IPC and not for the offences punishable under sections 447 and 427 IPC. The date of incident alleged in the complaint of Satya Prakash was different from the date of incident in the present case. The complaint of Satya Prakash was in respect of plot Nos. 33, 34, 35 and 36, whereas the respondent No.2 filed the complaint in respect of plot No.17.
From the above, it is clear that earlier the petitioner No.2 was not tried for the offence alleged by the respondent No.2 in his complaint and, therefore, looking to this fact, this Court is of the opinion that the protection under section 300 CrPC is not available to the petitioner No.2.
There is no quarrel about the proposition of law laid down by the Hon'ble Supreme Court in the above cited decisions by the counsel for the petitioners, however, the facts of those cases are quite distinguishable from that of present case, hence, they are no help to the petitioner.
Apart from that, though, this petition has been filed by (9 of 9) [CRLMP-2061/2012] the petitioner No.1 under section 482 CrPC but in fact it is second revision petition which is barred as per section 397(3) CrPC and thus not maintainable.
Hence, no interference is called for in this petition and the same is hereby dismissed.
(VIJAY BISHNOI)J. m.asif/PS