Rajasthan High Court - Jaipur
Radhey Shyam Agarwal And Ors vs J D A on 14 May, 2024
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2024:RJ-JP:22405]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 307/2013
1. Radhey Shyam Agrawal S/ Shri Nathu Lal Agrawal
2. Ravindra Kumar Agrawal S/o Shri Radhy Shyam Agrawal
3. Mahendra Kumar S/o Shri Radhey Shyam Agrawal
All R/o Plot No.B-40, Ganesh Nagar, Jaipur (Raj.)
----Petitioners
Versus
Jaipur Development Authority, Jaipur through its Secretary,
Indira circle, Jaipur (Raj.)
----Respondent
For Petitioner(s) : Mr. J.P. Goyal, Sr. Adv. assisted by
Ms. Jyoti Swami
For Respondent(s) : Mr. Riyasat Ali, PP
Mr. Munesh Bhardwaj for Jaipur
Development Authority
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
RESERVED ON April 15th 2024
PRONOUNCED ON May, 14th,2024
BY THE COURT
1. Three petitioners have jointly filed the present criminal misc. petition under Section 482 Cr.PC, for quashing of criminal proceedings against them in Criminal Complaint No.289/2010; JDA Vs. Radhey Shyam Agrawal & Ors., pending before the Court of Additional Chief Judicial Magistrate No.1, Jaipur Development Authority, Jaipur, wherein after taking cognizance for offences under Sections 31-32 of the Jaipur Development Authority Act, 1982 (hereinafter for short "the JDA Act"), vide order dated 02.12.2010, process has been issued against petitioners. Petitioners, after service of summons, filed an application dated (Downloaded on 14/05/2024 at 08:44:20 PM) [2024:RJ-JP:22405] (2 of 13) [CRLMP-307/2013] 22.09.2011, seeking to reject the criminal complaint on various grounds, but that application has been dismissed by the Court of Magistrate vide order dated 18.10.2012, hence the order dated 18.10.2012 has also been impugned by the petitioners in the present petition.
2. Briefly stated, it appears from record that on the basis of a Factual Inspection Report dated 12.11.2010, a criminal complaint against petitioners, has been filed on 02.12.2010, in respect of an illegal and unauthorized construction in rear setback portion of about 8' 3"X 75' area in Plot No.B-40, Ganesh Nagar, Jaipur and the allegation is that such construction was raised without permission of Jaipur Development Authority (hereinafter for short "the JDA"), and in addition, has not been removed despite giving notice by the JDA, therefore, offences under Sections 31(1) & 32 of the JDA Act has been made out against petitioners. The complaint has been filed by the JDA through Enforcement Officer, impleading all three petitioners as accused therein before the Court of Additional Chief Judicial Magistrate No.1, JDA, Jaipur, whereupon the Magistrate took note of the fact that since complaint has been filed by the Enforcement Officer, in the capacity of Public Servant, there is no requirement to record statements of complainant and witnesses under Section 200/202 Cr.PC, accordingly same is dispensed with and cognizance of alleged offences against all three petitioners, has been taken vide order dated 02.12.2010 and process against petitioners was issued to call them through summons.
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3. Petitioners, after service of summons, by way of filing application dated 22.09.2011 before the Court of Magistrate, raised three objections/issues, which are:
(I) Construction in question is more than 25 years' old and limitation for taking cognizance of offences under Sections 31-32 of the JDA Act, has expired, therefore, criminal complaint is hopelessly barred by limitation. (II) Notice dated 12.11.2010, issued for removal of such construction, was never served in person on petitioners, rather service has been effected through chispandagi, which is violative to Section 86 of the JDA Act and Section 64 of Cr.PC.
(III) Plot No.B-40, wherein the construction in question in rear setback portion, has been stated to be raised illegally, was purchased in joint name of Ravindra Kumar Agrawal and Mahendra Kumar (petitioners No.2 & 3 herein), through sale agreement dated 02.11.1988 from the original allottee of the plot namely Smt. Vijay Laxmi Shekhawat and thereafter, registered lease deed of the plot has been issued by the JDA on 22.03.2002, in the sole name of Ravindra Kumar Agrawal (petitioner No.2 herein), therefore, petitioner No.2 is alone the real and registered owner of the plot, hence, impleadment of petitioner No.1-Radhey Shyam Agrawal, who is father of petitioner No.2, and petitioner No.3-Mahendra Kumar, who is brother of petitioner No.2, as accused in the criminal complaint, is ex-facie illegal, as much as contrary to (Downloaded on 14/05/2024 at 08:44:20 PM) [2024:RJ-JP:22405] (4 of 13) [CRLMP-307/2013] record of the JDA, therefore, the criminal complaint is wholly arbitrary and has been filed in abuse of process of law.
4. The application filed by petitioners, has been rejected by the Magistrate vide order dated 18.10.2012. In respect of Point Nos. I & II, it has been held that both points are mixed question of facts and law, therefore, can be decided after recording evidence of parties and as far as Point No. III is concerned, it has been held that since cognizance has been taken against all three accused persons, the Court of Magistrate has no power and jurisdiction to review its own order of cognizance.
5. Learned Senior Counsel appearing on behalf of petitioners in respect of Point No. I, contended that Plot No.B-40 situated in the scheme of Ganesh Nagar, New Sanganer Road, Jaipur, measuring 425 Sq. Yards, was initially allotted to one Smt. Vijay Laxmi Shekhawat by the Shri Ganesh Housing Cooperative Society, Jaipur, through allotment letter dated 25.10.1982, who had raised construction of house on the plot and thereafter, petitioners No.2 & 3 purchased this residential plot along with constructed house thereupon, from the original allottee Smt. Vijay Laxmi Shekhawat through agreement to sale dated 02.11.1988 (Ann.1). He contends that thereafter, house tax was deposited by petitioner No.2 for a period 1984-1994, and lease deed has been issued by the JDA in the name of petitioner No.2-Ravindra Kumar Agrawal on 22.03.2002 (Ann.3). He contends that no new construction on the plot, has been raised by the petitioners, but in fact, some dispute was erupted between petitioners and their neighbour namely Sh. R.K. Jain, a retired Judicial Officer, therefore, on his (Downloaded on 14/05/2024 at 08:44:20 PM) [2024:RJ-JP:22405] (5 of 13) [CRLMP-307/2013] instigation, the Enforcement Officer prepared the site inspection report dated 12.11.2010 and filed the present criminal complaint. He contends that petitioners' neighbour also filed a separate complaint for similar offences, but he withdrew his complaint in respect of construction in the rear setback portion, on account of being old more than 10 years. He contends in the site inspection report as also in the criminal complaint filed by and on behalf of the JDA, there is no details about date, month or year, when the alleged illegal construction in rear setback portion raised by the petitioners. He contends that since house in the plot is old one and there is no new construction, and the limitation for taking cognizance u/s. 31 & 32 of the JDA Act, had already expired long back, many years ago. He contends that the offences for which, cognizance has been taken, are compoundable and fine can be imposed, therefore, as per Section 468 Cr.PC, the limitation for taking cognizance on such nature of offence, is only for six months. Therefore, according to the learned Senior Counsel for petitioners, the present criminal complaint and the cognizance of offence taken thereupon, are hopelessly barred by limitation, as such the order of cognizance be set aside and proceedings on the criminal complaint be quashed at threshold, being in abuse of process of law.
6. Having adverted to contentions of learned Senior Counsel and from perusal of the record as available before this Court, it is not clear from any of the documents either from agreement, house tax receipt or from lease deed of JDA along with siteplan, that the construction in the rear setback portion of the plot in (Downloaded on 14/05/2024 at 08:44:20 PM) [2024:RJ-JP:22405] (6 of 13) [CRLMP-307/2013] question, is existing since inception at the time of original allottee. In the report of JDA dated 12.11.2010, on the basis of which the present criminal complaint has been filed, only the construction in Plot No.B-40 in the rear setback portion measuring 8' 3"X 75', has been observed to be illegal and unauthorized and the illegal portion has been highlighted with crossed lines in the sitemap, which is part of the report. Whole house has not been alleged to be illegally constructed. Therefore, it is difficult to hold at this stage that the construction in question, which is confined only in rear setback portion of Plot No.B-40, has been in existence since beginning and prior to purchase of this plot by petitioners. In addition, the Magistrate has rightly held in the order impugned that the limitation of six months as provided u/s. 468 Cr.PC, shall commence as per provision of Section 469 Cr.PC. If the criminal complaint filed by petitioners' neighbour Sh. R.K. Jain was withdrawn, accepting the construction in question of more than 10 years old, the same is not binding on the JDA and as per report of the JDA, the alleged illegal and unauthorized construction in Plot No.B-40, came to light and knowledge of the Enforcement Officer on the date of inspection i.e. 12.11.2010. As per record, criminal complaint was filed on 02.12.2010 and on the same day, cognizance was taken & process was issued. Therefore, the Magistrate Court in order impugned dated 18.10.2012, has not committed any manifest illegality or jurisdictional error in holding that the issue of limitation, shall be considered after recording evidence of parties. Accordingly Point No.I has rightly been turned (Downloaded on 14/05/2024 at 08:44:20 PM) [2024:RJ-JP:22405] (7 of 13) [CRLMP-307/2013] down by the Magistrate and warrants no interference by this Court.
7. As far as Point No. II is concerned, the issue as to whether notice dated 12.11.2010, issued by the JDA, for removal of illegal construction in question, was deliberately not served in-person on any of the petitioners, rather service was effected first time by pasting of notice, which is clear violation of provision of Section 86 of the JDA Act and Section 64 Cr.PC, is also a mixed question of fact and law, hence learned Magistrate has held in the order impugned that at the initial stage, the criminal compliant is not liable to be rejected on this ground alone. In the opinion of this Court, the Judicial Magistrate has rightly dealt with this point by holding that the same shall be considered, after recording evidence of parties. This Court does not find any patent defect or error of jurisdiction or law, since the point is fundamentally based on discussion of factual matrix. Hence, no interference is warranted by this Court in respect of Point No. II as well.
8. As far as Point No.III is concerned, in the opinion of this Court, this point has a merit acceptance. It is apparent from record that the JDA has issued a registered lease deed dated 22.03.2002 of the Plot No.B-40 in the sole name of petitioner No.2-Ravindra Kumar Agrawal, however, in respect of construction in question in the rear setback portion of the Plot No.B-40, in the criminal complaint, petitioners No.1 & 3, who are father and brother of petitioner No.2, have also been impleaded as accused. From the side of petitioners, their contention is that the petitioner No.2 is the real and registered owner of the Plot No.B-40 and (Downloaded on 14/05/2024 at 08:44:20 PM) [2024:RJ-JP:22405] (8 of 13) [CRLMP-307/2013] petitioners No.1 & 3 have no concern with the alleged illegal and unauthorized construction in the rear setback portion of this plot; this contention finds support with the registered lease deed issued by the JDA of the Plot No.B-40 in the name of petitioner No.2- Ravindra Kumar Agrawal alone. There is no other evidence, on the basis of which the JDA has implicated petitioners No.1 & 3 also in the present criminal complaint. There are no allegations against petitioners No.1 & 3 in-person, in the complaint. The JDA has not disputed the issue of lease deed of plot in the sole name of petitioner No.2. Therefore, without verifying the titled document (registered lease deed of JDA) of the plot in question from the record, the implication of petitioners No.1 & 3 by the JDA in the present criminal complaint, seems to be wholly arbitrary and without any basis, which can not be appreciated. It is apparent from the record that the criminal complaint against petitioners No.1 & 3, has been filed contrary to the record of the JDA itself. The JDA could have filed criminal complaint only against petitioner No.2, in whose favour lease deed of the Plot No.B-40 was issued by the JDA.
9. In this context, it is noteworthy that the Magistrate has also not disbelieved the contention of petitioners in this regard, but has declined to reject the criminal complaint qua petitioners No.1 & 3, only for the reason that the cognizance has been taken against them and the Judicial Magistrate has no power to review his own order of cognizance.
10. On this issue, the Hon'ble Supreme Court in case of Adalat Prasad Vs. Rooplal Jindal [(2004) 7 SCC 338], has already (Downloaded on 14/05/2024 at 08:44:20 PM) [2024:RJ-JP:22405] (9 of 13) [CRLMP-307/2013] overruled the previous view expressed in case of K.M. Mathew Vs. State of Kerala [(1992) 1 SCC 217], allowing to recall the erroneous order of cognizance by the Magistrate himself, and held as under:-
"It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code."
The exposition of law on this point as propounded by the Apex Court in case of Adalat Prasad (Supra) is well settled and has been followed and reiterated in subsequent various judgments and in that context, reference of following judgments would be suffice:
Bholu Ram Vs. State of Punjab [(2008) 9 SCC 140]; N.K. Sharma Vs. Abhiamnyu [(2005) 13 SCC 213]; Everest Advertising (P) Ltd. Vs. State, Govt. Of NCT of Delhi[(2007) 5 SCC 50] & M/s Iris Computers Ltd. Vs. M/s Askari Infotech Pvt. Ltd. [LAWS(SC) 2013 2 95].
11. In view of above, this Court finds that from the record, it is apparent and undisputed that the lease deed of Plot No.B-40 had been issued by the JDA in favour of petitioner No.2-Ravindra Kumar Agrawal alone, therefore, implication of petitioners No.1 & (Downloaded on 14/05/2024 at 08:44:20 PM) [2024:RJ-JP:22405] (10 of 13) [CRLMP-307/2013] 3, who are father and brother of petitioner No.2, in the present criminal complaint filed by the JDA for offences under Sections 31- 32 of the JDA Act, is absolutely unwarranted. The JDA implicated petitioners No.1 & 3 in the present criminal complaint along with petitioner No.2, without verifying its own record and without examining the titled document (registered lease deed) of the Plot No.B-40. Thus, it is apparent on record that the cognizance taken by the Magistrate on the criminal complainant filed by the JDA for offences under Sections 31-32 of the JDA Act qua petitioners No.1 & 3, is contrary to the record and such order of cognizance qua petitioners No.1 & 3, suffers from inherent lack of jurisdiction and sustaining such order of cognizance qua petitioners No.1 & 3 would lead failure of justice. The Judicial Magistrate refrained from recalling the order of cognizance for want of jurisdiction, following the dictum of law as expressed by the Apex Court delivered in case of Adalat Prasad (Supra), therefore, this Court in exercise of its jurisdiction under Section 482 Cr.PC, deems it just and proper to quash the order of cognizance qua petitioners No.1 & 3, because it has been found that filing of the criminal complaint and continuation of proceedings thereupon qua petitioners No.1 & 3, would be in sheer abuse of process of law. Therefore, to prevent abuse of process of Court, it is desirable and necessary to exercise jurisdiction u/s.482 Cr.PC, however, it is made clear that as far as criminal complaint and cognizance taken for offences u/s.31-32 of the JDA Act qua petitioner No.2 is concerned, the same warrants no interference. The Point No.III is decided accordingly. (Downloaded on 14/05/2024 at 08:44:20 PM) [2024:RJ-JP:22405] (11 of 13) [CRLMP-307/2013]
12. Apart from above, learned Senior Counsel for petitioners has orally argued that the present criminal complaint by the JDA was filed through the Enforcement Officer, who was not authorized and competent to institute a criminal complaint. It appears that this issue was not raised by petitioners before the Magistrate Court, in their application dated 22.09.2011 and has not been considered by the Magistrate, however, since the objection has been raised before this Court, which goes to the root of matter, is being considered. In counter to this objection, from the side of JDA, one Office Order dated 06.11.2017 issued by the JDA, has been placed on record.
As per Officer Order dated 06.11.2017, the designation of authorized authority to initiate criminal prosecution for and on behalf of JDA as prescribed in the order dated 02.09.1982 has been clarified and the designation of that authority "Deputy Director (Enforcement)" has been ordered to be read as "Deputy Controller (Enforcement)". The present criminal complaint has been filed by the then Enforcement Officer of Zone-5 of the JDA. Therefore, in the light of clarification made by the JDA in its Office Order dated 06.11.2017, the objection raised on behalf of petitioners, has no force and accordingly, the same is hereby rejected.
13. Final Outcome of the aforesaid discussions is that the proceedings of Criminal Complaint No.289/2010, pending before the Court of Additional Chief Judicial Magistrate No.1, JDA, Jaipur so also the order of cognizance dated 02.12.2010 qua petitioner No.1-Radhey Shyam Agrawal & petitioner No.3-Mahendra Kumar, (Downloaded on 14/05/2024 at 08:44:20 PM) [2024:RJ-JP:22405] (12 of 13) [CRLMP-307/2013] are hereby quashed and names of petitioners No.1 & 3 be deleted in the criminal complaint. However, order of cognizance dated 02.12.2010 for offences u/s. 31-32 of the JDA Act, against petitioner No.2-Ravindra Kumar Agrawal, shall survive and proceedings in the present criminal complaint qua petitioner No.2, shall remain continue in accordance with law. It would be open for petitioner No.2 and JDA, to adduce their evidence on Points No. I & II, in respect of filing the present criminal complaint after expiry of limitation and without effecting service of notice dated 12.11.2010, in-person on petitioner No.2, which shall be considered by the Court of concerned Magistrate in accordance with law.
14. It is made clear that any of findings or observations made by this Court in the present judgment, would not affect merits of the present criminal complaint and the same would be decided by the Court of concerned Magistrate in accordance with law.
15. With aforesaid observations and terms, the present criminal miscellaneous petition is party allowed. No costs.
16. All pending application(s), if any, stand(s) disposed of.
17. Looking to the short controversy in the present complaint only in respect of construction in rear setback area of 8' 3"X 75' in Plot No.B-40, Ganesh Nagar, Jaipur and pendency of complaint since 02.12.2010, wherein after taking cognizance for offences u/s. 31-32 of the JDA Act, proceedings were stayed by this Court, during course of the present petition, therefore, it is hereby directed that the concerned Magistrate shall make endeavour to decide the present criminal complaint expeditiously and if (Downloaded on 14/05/2024 at 08:44:20 PM) [2024:RJ-JP:22405] (13 of 13) [CRLMP-307/2013] possible, within a period of twelve months from the next date already fixed, after receiving certified copy of this judgment.
18. A copy of this judgment be forwarded to the Court of concerned Magistrate, forthwith.
(SUDESH BANSAL), J Sachin (Downloaded on 14/05/2024 at 08:44:20 PM) Powered by TCPDF (www.tcpdf.org)