Rajasthan High Court - Jaipur
Dr. Manoj Kumar Tiwari vs State Of Rajasthan And Ors on 3 October, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. CRIMINAL MISC. PETITION NO. 742/2010 DR. MANOJ KUMAR TIWARI VS. STATE OF RAJASTHAN & OTHERS. DATE OF ORDER : 3.10.2013 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-II Mr. Shiv Charan Gupta, for the petitioner.
Mr. Laxman Meena, Public Prosecutor, for the Respondent No. 1-State.
Mr. Mahesh Gupta, for the Respondent Nos. 2 to 5.
Instant misc. petition under Section 482 Cr.P.C. has been filed by the complainant-petitioner against the order dated 18.01.2010 passed by Additional Sessions Judge No. 3, Jaipur City, Jaipur(hereinafter referred to as the Revisional Court) in Criminal Revision No. 69/2009, whereby the Revisional Court has dismissed the revision petition filed by the petitioner and upheld the order dated 12.03.2009 passed by the Assistant Collector Cum Executive Magistrate, Jaipur City, Jaipur(hereinafter referred to as the Trial Court) on Case File No. 189/2008 in proceedings under Section 107 and 116(3) Cr.P.C..
2. Brief facts of the case are that the petitioner filed a complaint to the SHO, Police Station Mahesh Nagar, Jaipur on 31.01.2008 against the Respondents No. 2 to 5-non-applicants with the allegations that he is Medical Officer and the Respondents did beating with him and for that a report had already been lodged by him. Again the respondents called him at residence on the pretext of compromise and gave beating and threaten that in case he would demand any of his goods/articles/gold etc. and come out of the house he would be murdered. Therefore, he again lodged the report for taking action against the respondents-non-applicants, but the police after investigation submitted only a private complaint in the court of Executive Magistrate for taking action against the respondents-non-applicants under Section 107 and 116(3) Cr.P.C. The Executive Magistrate after considering the prima facie case issued notices to the respondents under Section 111 Cr.P.C. for their appearance in Court on 08.04.2008. The respondents-non-applicants did not appear despite service of notices. Therefore, vide order dated 12.11.2008, bailable warrants were ordered to be issued. Thereafter, Advocate appeared on behalf of the non-applicants on 06.03.2009 before the learned Trial Court and an application under Section 116(6) Cr.P.C. was filed by the Advocate of non-applicants to drop the proceedings. Thereafter, the case was listed on 12.03.2009 and on that day, the learned Trial Court dropped the proceedings, on the ground that proceedings are going on for last more than six months and in the meantime there was no complaint of breach of piece. Being aggrieved with the order dated 12.03.2009 passed by the learned Trial Court, the complainant-petitioner preferred a revision petition before the learned Revisional Court, but the same also came to be dismissed by the learned Revisonal Court vide order dated 18.01.2010. Feeling aggrieved by the order dated 12.03.2009 passed by the learned Trial Court and order dated 18.01.2010 passed by the learned Revisional Court, the petitioner has preferred this misc. petition under Section 482 Cr.P.C.
3. Heard learned counsel for the parties and perused the impugned orders passed by both the Courts below.
4. Learned counsel for the petitioner has contended that both the courts below have committed illegality and misread the provisions of Section 116 Cr.P.C. particularly, the provisions of Section 116(1) and (6) thereof. As per the Section 116(6) the proceedings stand terminated only if the enquiry under Section 116(1) Cr.P.C. is not completed within six months. As per Section 116(1) Cr.P.C. the enquiry starts only from the date of appearance of the non-petitioners and only after reading over and explaining an order under Section 111 Cr.P.C. and not prior to that. Meaning thereby, the enquiry starts only when non-petitioners appeared in person and the contents of notice under Section 111 Cr.PC. are read over and explained to them and not from the date when the complaint has been filed, nor from the date when the notices have been issued, nor from the date when the notices have been served, nor from the date when the Vakalatnama has been filed on behalf of the respondents-non-applicants. Learned counsel for the petitioner further contended that in the present case, the respondents did not appear even once before the Trial Court after service of the notices despite of the undertaking given by their Advocate who filed the Vakalatnama on their behalf in their absence. There was no question of reading and explaining the contents of notice under Section 111 Cr.P.C., nor giving reply thereof by the respondents. As such there was no question of beginning or starting of the inquiry stipulated under Section 116(1) of the Cr.P.C. Once, the enquiry was not initiated nor begin then there is no question of completion of the same within six months. The orders passed by both the Courts below suffer from basic and fundamental illegality in law and it is a case of abuse of the process of law and court by misinterpreting the provisons of Section 116 Cr.P.C. In support of his submissions, learned counsel for the petitioner placed reliance upon the decision rendered by the Kerala High Court in the Case of Mathewkutty and Another Vs. State of Kerala & Another, 1995 Cri.L.J. 3293. Learned counsel for the petitioner prayed that the orders passed by both the Courts below may be quashed and set aside and the Court of Assistant Collector Cum Executive Magistrte, Jaipur City, Jaipur to proceed with the case and decide the proceedings on merits.
5. Learned Public Prosecutor appearing on behalf of the Respondent No. 1-State as well as learned counsel appearing on behalf of the Respondent No.2 to 5 have supported the orders passed by both the Courts below and contended that the findings of both the Courts below are perfectly just and proper in the facts and circumstances of the case as well as evidence available on record and it does not require any interference, therefore, they prayed for dismissal of the present misc. petition filed by the petitioner.
6. Learned Revisional Court while passing order dated 18.01.2010 has observed as under:
???? 107, 116??.??. ?? ????????? ?? ??????????? ????????? ??, ??? ???? ????? ???????? ??? ???? ?? ??????? ???? ??, ???? ?? ???? ????????? ?? ???? ??? ??? ??????????? ?? ?? ?? ?? ?????? ???? ????? ?? ???? ??.??.??. 1987 ??? 215 ?? ???? ??? ?????? ???? ???? ???????? ?? ?? ???????? ?????????? ???? ?? ?? ?????????? ?????? ??? ??? ?????????? ???? ??? ???? 6 ??? ?? ??? ???? ????????? ?????? ?? ???? ?? ??? ?? ???? ?????? ?? ??? ???????? ?? ?????? ?? ?????? ????? ???????? ?? ????? ?? ???? ??? ???? ???? ?????? ?????? ?? ???? ?? ?????? ???? 107, 116 ??.??. ?? ????????? 6 ??? ?? ?????? ?????? ?? ???? ??? ?????? ???? ???? ???????? ?? ????? ???? ???. ????? 1999(1)??.??.??. 103 ?? ???? ??? ?? ?????? ???? ???? ???????? ?? ?? ???????? ?????????? ???? ?? ?? 6 ??? ?? ??? ?????????? ?????? ?????????? ???? ???? ?? ????? ?? ???? ?????? ? ?? ????? ?? ?????? ?? ?? ????? ??? ???????? ?? ???????? ??? ??: ?? ???? ??? ?? ?? ???????? ?????????? ???? ??? ?? ?? ???? 116(6)??.??. ?? ??? 6 ??? ?? ???? ?? ??? ???? ???? 107,116 ??.??. ?? ????????? ????: ?? ?????? ?? ???? ??? ??? ?????? ?? ???????? ???? ?? ?????? ??? ?????? ?? ?? ?? ??? ?? ?? ?? ????? ?? ?????????? ???? ??? ???? ?????????? ?? ?? ?? ?? ???? ???? ??? ???? ????? ? ?? ?? 1964 (???????) 391 ??? ?? ?? ???? ???? ??? ?? ??? ???????? ?????????? ???? ??? ?? ?? ?????????? ?? ???? 107,??.??. ?? ??? ????????? ????? ???? ?? ?????? ??????? ??? ?? ???????? ??? ??? ???? 6 ??? ?? ????? ??? ????? ??? ??? ?? ??? ??? ????? ??????? ?????? ?????????? ?? ???? ???? ??? ?? ???????? ?????? 13.3.08 ?? ??? ??? ?? ? ?????? 12.3.09 ?? ?? ???????? ????? ??? ?? ?????? ?? ??? ?? ???? ??? ??? ????? ??? ??? ??, ??? ??? ??????? ???????? ?? ????? ???? ???? ??? ??: ?? ?????? ??? ?? ?? ??? ????? ?? ???????? ?????????? ???? ??? ???, ???? ???? ?? ??????? ??????? ???????? ?????? ???? ???? ?????? 12.309 ?? ?? ????? ???? ??, ?? ???? ?????? ??? ??, ????? ???? ?????? ?? ??? ?????? ???? ??? ???? ??? ?????????? ?? ?? ?? ???????? ???? ??????? ??? ??? ?? ???? ?? ??: ?? ???? ?? ??????? ????? ???? ???? ????? ???"
7. The provisions of Section 116(6) Cr.P.C. are mandatory. The proceedings shall stand terminated as against the non-applicants not in detention by operation of law on the expiry of a period of six months from the date of the commencement of the enquiry but the Magistrate for special reasons to be recorded in writing can extend the period before the expiry of six months and continue the proceedings. The enquiry commences as soon as cognizance taken by the Magistrate or as soon as the opposite party in a proceeding under Section 107 Cr.P.C. challenges the allegations.
8. The petitioner has already availed one revision as envisaged under Section 397 Cr.P.C. and in the garb of the petition under Section 482 Cr.P.C., the petitioner wants to avail second revision, which is otherwise barred by sub-Section (3) of Section 397 Cr.P.C. Though, this court, in appropriate cases, has inherent powers to be exercised, where it appears that the orders, which are under challenge, have resulted in serious miscarriage of justice or abuse of process of the court, further, the power being an extraordinary one and it has to be exercised sparingly. The case in hand is not of that nature. It is also clear that after passing the order dated 12.03.2009 till today, no unpleasant incident has taken place between the parties. In the facts and circumstances and evidence available on record of the present case, I do not find any good ground to interfere with the impugned orders in exercise of the inherent jurisdiction under section 482 Cr.P.C. The ratio of decision rendered by the Kerala High Court in the case of Mathewkutty & Another(supra), upon which the learned counsel for the petitioner has placed reliance, is not applicable to the facts and circumstances of the present case.
9. In view of the above discussion, I do not find any merit in this criminal misc. petition filed under Section 482 Cr.P.C. and the same is, accordingly, dismissed.
(NARENDRA KUMAR JAIN-II),J.
Manoj All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
MANOJ NARWANI JUNIOR PERSONAL ASSISTANT