Rajasthan High Court - Jodhpur
Rajendra Prasad vs State on 5 May, 2016
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
S.B.Cr.Misc. Petition No.1626/2012
Rajendra Prasad Saraf
vs.
State of Rajasthan & Anr.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S.B.Cr.Misc. Petition No.1626/2012
Rajendra Prasad Saraf
vs.
State of Rajasthan & Anr.
Date of Order : 05.05.2016
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI
Mr Suresh Kumbhat ]
Mr Sheetal Kumbhat ] for petitioner
Mr Vikram Rajpurohit-Public Prosecutor
Mr M.K.Garg ]
Mr Pankaj Gupta ] for respondent No.2
BY THE COURT:
This Criminal Misc. Petition under section 482 CrPC has been filed by the petitioner being aggrieved with the order dated 17.05.2012 passed by Additional Sessions Judge, Churu (for short 'the revisional court' hereinafter) in Cr. Revision Petition No.1/2012 (39/09), whereby the revision petition preferred by the petitioner has been dismissed. The petitioner had preferred the said revision petition against the order dated 24.10.2008 passed by the Chief Judicial Magistrate, Churu S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
2 (for short 'the trial court' hereinafter) in Cr. Case No.240/2008, whereby the trial court took cognizance against the petitioner for the offence punishable under section 448 IPC.
Brief facts of the case are that on 23.07.2007, respondent No.2 filed a complaint before the Superintendent of Police, Churu alleging that Bhagwan Devi Poddar Charitable Trust, Churu (for short 'the trust' hereinafter) is a private trust and Ramnath, Jagdish Prasad, Shivratan and Kamal Poddar are the trustees of the said trust and real custodial of the property of the trust. In the said complaint, description about the building of the trust situated in town Churu has been given. The complainant has alleged that on 11.07.2007, when he reached Churu from Kolkata, he came to know that in Shekhawati Edition of Dainik Bhaskar dated 20.04.2007, a general notice was published by Rajendra Kumar son of late Nandlal Saraf, resident of Churu declaring that the whole Poddar Bhawan was taken on lease by him on 16.11.2004 and 21.10.2004. It is alleged that S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
3 the trustees of the trust never executed any such lease deed in favour of Rajendra Kumar and also not appointed any person as power of attorney holder for the properties of the said trust after 06.03.2002. It is further alleged that the earlier power of attorney in relation to the property of the trust given to Hanuman Prasad Poddar and Sajjan Kumar Saraswat has already been cancelled and those persons have also been informed about the same. It is further alleged in the complaint that on 16.11.2004 and 21.10.2005, no lease deed was registered by the trustees of the trust in the Registry Office and, therefore, the general notice published by Rajendra Kumar Saraf in the news paper is incorrect. The complainant has alleged that Rajendra Kumar Saraf without informing the trustees of the trust had broken the locks of the rooms of the building and put his locks on the same. The complaint has further stated that in the building various items worth of about Rs.30,000/- were lying in six rooms of the building and he has doubt that all the said S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
4 items have been stolen by Rajendra Kumar Saraf. He has prayed that Rajendra Kumar has illegally occupied the said building and therefore, action be taken against him.
The complaint filed by the respondent No.2 was sent by the Superintendent of Police to the Police Station, Kotwali, Churu under section 154(3) CrPC for investigation on which FIR No.186/2007 has been registered against petitioner Rajendra Prasad Saraf for the offences punishable under sections 448, 454, 380 IPC on 27.07.2007. The police after thorough investigation has submitted FR No.74/2007 before the trial court, which was received in the trial court on 14.12.2007. The trial court while taking the said FR on record on 14.12.2007, ordered for issuing notice to the complainant and the next date was fixed as 18.12.2007. Thereafter, respondent No.2 put in his appearance through advocate and sought time to file protest petition, however, no protest petition was filed by the complainant though, the case was listed before the trial court on S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
5 nine dates from the date of putting appearance by the complainant and on 11.09.2008, the matter was fixed for 14.11.2008. However, in the meantime on 23.10.2008, the S.H.O., Police Station, Kotwali, Churu received the case diary from the trial court and on the very day, filed the charge-sheet No.137/2008 against the petitioner for the offence punishable under section 448 IPC before the trial court. The trial court vide order dated 24.10.2008 took cognizance against the petitioner for the offence punishable under section 448 IPC. Being aggrieved with the same, the petitioner preferred a revision petition before the revisional court, however, the same has been dismissed by the revisional court vide order impugned dated 17.05.2012.
It is noticed that while submitting the negative final report on 06.09.2007, the S.H.O., Police Station, Kotwali, Churu concluded that Sajjan Kumar Saraswat, power of attorney holder of the trust has specifically admitted in his statement that he executed two lease deeds S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
6 in favour of the petitioner for the building of the trust on 16.11.2004 and 21.10.2005 and in lieu thereof, he received Rs.4,00,000/- from the petitioner and also received Rs.16,000/- for the items lying in the said building and the possession of the building was handed over to him. After concluding this, the S.H.O., Police Station, Kotwali, Churu observed that though two lease deeds executed by Sajjan Kumar Saraswat in favour of the petitioner are not registered but then it is a civil dispute between the parties and no offence punishable under sections 448, 454 and 380 IPC has committed. However, on 23.10.2008, the said Investigating Officer recorded the supplementary statement of Sajjan Kumar Saraswat - executor of two lease deeds in favour of the petitioner and observed that Sajjan Kumar Saraswat has denied the execution of the lease deeds. The said lease deeds are also not registered and from the documents produced by the petitioner, it cannot be said that he is the owner of the property of the trust and as such he has committed the offence S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
7 punishable under section 448 IPC. The Investigating Officer has also observed that Sajjan Kumar Saraswat has also filed an FIR NO. 127/2008 against the petitioner alleging that the petitioner and one Hanuman Prashad has forged two lease deeds in relation to the trust property and therefore, they have committed the offence of cheating and forgery of documents.
It is evident from the perusal of copies of FR N0.101/2008 produced by the counsel for the petitioner that the police after thorough investigation into the FIR No.127/2008 of Police Station, Kotwali, Churu lodged by Sajjan Kumar Saraswat filed the negative final report before the court concerned on 15.05.2008 while concluding that the allegations levelled in the said FIR are false. Being aggrieved with this, Sajjan Kumar Saraswat filed a protest petition before the trial court, however, the trial court vide order dated 15.04.2010 accepted the said final report and rejected the protest petition filed by Sajjan Kumar Saraswat. The copy of the order dated 15.04.2010 has been S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
8 produced by the counsel for the petitioner in which the trail court has held as under: "5. उक र प र प पक ण सख 127/08
ध 420, 467, 468, 471, 120 ब भ दस म दर क र क न ममत अ सध क! ब द अनतम पनतव!द पसतत कक ग ।
6. ब वरद' दद ! र ! प प अवस पर व द* क ओ स! अप र च-क क! समर म ध 200 व 202 स .आ .प .स . क! तहत क ई स क पसतत ह* क गई। दद क 09.04.2010 क पर व द* ह जर ह* आ तर उसक! अचधवक क ओ स! दहद त प4 व ह* ह ! ब बत द खव सत प!श क गई।
7. पत वल* क अवल क कक ग ।
अ सध अचधक */र चधक * क आध कक
पर व द* सजर कम उक टसर क प:व ऑफ
अर: = र र4स कक उस ! सव ! भ कह ह4 ।
पर व द* ! 16.11.04 व 21.10.05 क उक टसर क धमश ल क 99 स ल ल*रड ड र!न@ स फ क! म ½- ½ दहसस क द ब सव सर मप ख *द क त4 क । ! सर मप सव द ख *द एव इ प उसक सव क म ह पर व द* ! सव ! सव क कक ह4 ।
8. इस पक पर व द* क कर कक ह म पस द ! उसस! ख ल* क गर, स दF व सर मप प उसक! षड नतपव ' क हसत क क व क उक ल*र ड ड फर= त4 क ह4, कतई गलत ह4 ।
आ प गण द उसक! हसत क F प क'र - क
उक ल*र ड ड त4 क ह* प ।
9. पत वल* प उपलबध उक तर कचरत
ल*रड ड क फ र पनत क अवल क क ! स!
इसक! सर मप प सजर कम पर व द* द क
क अककत ह4 तर सर मप ववक!त मशव त !
16.11.04 क रर ! कम क 2049 तर 21.10.05 क रर ! कम क 1178 उक सर मप पर व द* द क क बत ह4 एव र! * न र मख ! उसक! द सजर कम क! आ ! प अर! सर क बत ह4 ।
10. इस स क क खणड पर व द* क ओ स! र च-क क! समर म ध 200 व 202 द.प.स. क स क स! ह* क ग ह4 ।
11. अत: अ सध अचधक */र चधक * द मल ग उप क आध र इस अनतम पनतव!द ब बत मल ! ग ! हN, व! आध समच-त ह ! प ! र त! हN। पत वल* प आ प गण क! ववरद आद! मशक र * क ! क! भ क ई आध ह* ह4 ।
S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
9
अत: र च-क ख र र कक ! र ! ग ह4
एव अनतम पनतव!द सव क कक ! र ! क! ग
ह4 ।
आद! श
12. पर व द* सजर कम पत शभक ण ब हमण
न व स -'र क! द पसतत र च-क
असव क क ख र र क र त ह4 एव अनतम
पनतव!द सव क कक र त ह4 । क!स ड *
सबचधत पमलस र क लTर ई र व!।"
In the above facts and circumstances of the case, learned counsel for the petitioner has argued that the continuation of the proceedings against the petitioner for the offence punishable under section 448 IPC is nothing but abuse of process of law. It is argued that the sole basis of the police of filing the charge-sheet against the petitioner for the offence punishable under section 448 IPC in FIR No.186/2007 is that Sajjan Kumar Saraswat was not having authority to execute lease-deeds in favour of the petitioner in the capacity of power of attorney of the trustees of the trust and the said lease-deeds are not registered and Sajjan Kumar Saraswat has denied that he has executed any such lease deeds and he has also filed an FIR against the petitioner and other S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
10 persons alleging that the said lease deeds are forged one. It is submitted that now in the FIR filed by Sajjan Kumar Saraswat with the allegations that the lease-deeds alleged to have been executed by him in favour of the petitioner are forged, the police after thorough investigation has found that the lease-deeds in questions were executed by Sajjan Kumar Saraswat and the allegations of forging the same by the petitioner and other persons are false. It is submitted that in the said lease-deeds, which have been found to be genuine by the police, it is clearly mentioned that the possession of the building of the trust has been handed over to the petitioner. Thus, in such circumstances, it cannot be concluded that the petitioner has committed the offence of criminal trespass, which is punishable under section 448 IPC. It is argued that the trial court while accepting the final report No.101/2008 arising out of FIR No.127/2008 of Police Station, Kotwali, Churu filed by Sajjan Kumar Saraswat and while rejecting the protest petition filed by him has S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
11 clearly observed that it cannot be held that the petitioner and other persons have forged the lease-deeds in question. It is argued by counsel for the petitioner that this fact though brought into the notice of the revisional court, but the revisional court without giving any finding on it has illegally rejected the revision petition filed by the petitioner.
On the strength of the above arguments, learned counsel for the petitioner has prayed that the impugned order passed by the trial court of taking cognizance for the offence punishable under section 448 IPC and the order of the revisional court rejecting the revision petition and affirming the order of the trial court may kindly be set aside and the proceedings against the petitioner in criminal case No.240/2008 pending in the Court of Chief Judicial Magistrate, Churu may kindly be quashed.
Learned Public Prosecutor as well as counsel appearing for the respondent No.2 have opposed the prayer of the petitioner and argued S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
12 that at the time of taking cognizance, the trial court is required to take into consideration the material collected by the prosecution and on the basis of which, if prima facie offence is proved against the accused, cognizance can be taken. It is further argued that in the present case, sufficient material to take cognizance against the petitioner is available on record. Hence, the trial court as well as the revisional court have not committed any illegality in passing the impugned orders. However, the learned counsel for the respondent No.2 is not in a position to dispute that in the FIR No.127/2008 filed by Sajjan Kumar Saraswat at Police Station, Kotwali, Churu, the police has filed the negative final report while concluding that the allegations of forging the lease-deeds by the petitioner and other persons are false and the trial court has also accepted the said final report vide order dated 15.04.2010.
Heard learned counsel for the rival parties and perused the impugned orders as well as the material available on record.
S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
13 This Court is of the opinion that in view of the admitted facts that the trial court in the FIR No.127/2008 filed by Sajjan Kumar has accepted the final report while concluding that the allegations of Sajjan Kumar Saraswat to the effect that the petitioner and other persons have forged the said lease-deeds are false, the allegation of the prosecution against the petitioner of committing the offence of criminal trespass cannot be sustained because in those lease-deeds, it is clearly mentioned that the possession of the building of the trust has been handed over to the petitioner by the executor of the lease-deeds Sajjan Kumar Saraswat. Whether any right has been created in favour of the petitioner on the basis of the said lease deeds or not because they are not registered is purely a question, which can only be decided by the competent civil court. The revisional court in the impugned order dated 17.05.2012 though has taken into consideration this fact that the trial court has already accepted the final report filed by the police with a conclusion S.B.Cr.Misc. Petition No.1626/2012 Rajendra Prasad Saraf vs. State of Rajasthan & Anr.
14 that the allegation of forging the lease-deeds in relation to the property of the trust levelled by Sajjan Kumar Saraswat are false, has not given any finding on this aspect.
Having taking note of the above fact situation, this Court is of the opinion that the continuation of the proceedings against the petitioner for the offence punishable under section 448 IPC is nothing but an abuse of process of law, therefore, this petition deserves acceptance.
Consequently, this criminal misc. petition under section 482 CrPC is accepted and allowed and the impugned orders dated 24.10.2008 and 17.05.2012 passed by Chief Judicial Magistrate, Churu and Additional Sessions Judge, Churu respectively are hereby set aside. The proceedings pending against the petitioner in Cr.Case No.240/2008 before the Court of Chief Judicial Magistrate, Churu stand terminated.
Record of the trial court be sent back immediately.
[VIJAY BISHNOI], J.
m.asif/PS