Rajasthan High Court - Jaipur
Ms. Madhu Jain vs Union Of India on 14 December, 2015
Author: M.N. Bhandari
Bench: M.N. Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR S.B. Criminal Misc. Recalling Application No.198/2015 In S.B. Criminal Misc. Petition No.1061/2010 Dr. Usha Acharya Versus State of Rajasthan & Anr.
DATE OF ORDER : 14th December, 2015 HON'BLE MR. JUSTICE M.N. BHANDARI Ms. Madhu Jain, applicant - present in person Mr. Virendra Lodha, Sr. Adv. with Mr. Jai Lodha, for non-applicant Heard the parties.
This misc. application has been filed by Mrs. Madhu Jain for recall of the ex-parte order dated 24th April, 2015 and to dismiss the petition preferred by the petitioner-non-applicant.
The applicant-non-petitioner in person submits that a complaint was preferred by her for the offence under Sections 166, 420 & 120B IPC. The learned court below recorded the statement of the complainant under Section 200 Cr.P.C. and sent the case for inquiry by the Police under Section 202 Cr.P.C. It had submitted adverse final report. The applicant-non-petitioner preferred a protest petition. The complainant prayed for summoning of certain documents from the hospital. When documents were produced, it revealed that they are not original and otherwise created fraudulently. The applicant-non-petitioner thus preferred a separate complaint for it, which was then sent for investigation by the Police Station Sadar, Jaipur. After the investigation, adverse final report was produced in that case also. The applicant-non-petitioner then filed a protest petition in the said case also. Both the cases were then heard by the trial court. The documents produced in pursuance to the direction of the court were found to be forged in the FSL report. The court thereupon heard the case for cognizance of offence but in absence of sanction for prosecution required under Section 197 Cr.P.C., cognizance was not taken. On a revision petition preferred by the applicant-non-petitioner, the case was remanded to the lower court. It was with the direction to find out whether a prima facie case is made out and sanction for prosecution under Section 197 Cr.P.C. is required. The trial court then took cognizance of offence after hearing the parties.
It is submitted that after remand, the court took cognizance in reference to the FSL report and found prima facie case against the petitioner-non-applicant. It is also submitted that before cognizance, the accused is not required to be heard. After cognizance of offence, summons were served on the petitioner-non-applicant, who then engaged an Advocate for her representation. The petitioner-non-applicant did not file a revision petition under Section 397 Cr.P.C. but preferred a petition under Section 482 Cr.P.C. It was not maintainable and otherwise to delay the proceedings.
The details written arguments have been submitted by the applicant where facts in reference to other complaint about change of baby boy with a baby girl have also been given. Therein, DNA test was conducted but has been challenged in the written arguments though issue aforesaid is not involved in the present case, as admitted by the applicant herself.
The applicant in person submits that the documents sent to the court by the petitioner-non-applicant were found to be forged thus, cognizance of offence was rightly taken against her. It was not in discharge of official duty, thus sanction for prosecution was not required. There was no reason for this court to cause interference in the order of cognizance or earlier order by which case was remanded. It is more specifically when offence is under Sections 467, 468, 471 & 120B IPC. A reference of judgment of Apex Court in the case of Centre for Public Interest Litigation Vs. Union of India, reported in AIR 2005 SC 4413 has been given. The prayer is accordingly to recall the order dated 24th July, 2015 and dismiss the criminal misc. Petition preferred by the petitioner-non-applicant.
Learned counsel appearing for the non-applicant submits that misc. application for recall of the order is not maintainable, as review of the order is not permissible in view of Section 362 Cr.P.C. It is further submitted that petition under Section 482 Cr.P.C. was not only maintainable but has been rightly allowed by this court as not only remand of the case but even subsequent order was not legally tenable. The directions given in the remand order were also not followed by the court below. If allegations against the non-applicant are considered on its face, she had no intention to send the documents different than exist in the record. It is not that allegation of exchange of child is against her, rather she was not working in the hospital at the relevant time when applicant-non-petitioner delivered a child. The documents were sent on its summon by the court, thus it was in discharge of official duties. The trial court did not consider the issue as to whether prima-facie case is made out against the non-applicant and further as to whether her act was in discharge of official duty requiring sanction for prosecution under Section 197 Cr.P.C. It is moreso when the revisional court had given specific direction to determine those issues while remanding the case. In view of above, this court had rightly set aside the orders passed by the subordinate courts. Hence, order dated 24th April, 2015 may not be recalled.
I have considered the rival submissions made by the parties and perused the record.
The recall of the order has been sought on various grounds. The facts of the case have already been narrated thus need not to be reiterated other than that on a complaint filed by the applicant-non-petitioner, negative final report was given by the Police and on a protest petition, the trial court refused to take cognizance of the offence. A revision petition was then preferred by the applicant-non-petitioner wherein case was remanded back to the court below with the following directions, which are quoted thus:
???????: ????????-??????? ??????? ??? ??? ?? ?? ?? ???????? ???? ????? ????????? ???????? ?????: 57/2010 ? 58/2010 ??????? ?? ???? ?? ??? ??????? ??????? ???????? ?????? ????? ???????? ???? ?????? 02.02.2010 ?????? ???? ???? ?? ??? ??????? ??????? ???????? ?? ??????? ???? ???? ?? ?? ?? ??????? ?? ???????? ?? ????? ????????? ?? ???????????? ??? ?? ??????? ?????? ????? ?????????? ???? ????? ?? ??????? ?? ??????? ??? ????? ????? ???????? ???? ????? ?? ??? ??, ???? ????, ??? ????????? ?? ???? ????? ??? ?? ???? ???? ???????? ?? ??????? ??????? ???????? ?? ???????? ??, ???? ?????
???? ?? ????? ???? ??????? ??????? ???????? ?? ?????? ?????? ?????? ?????"
The perusal of order quoted above reveals specific direction to first find out whether a prima facie case is made out against the petitioner-non-applicant and then whether sanction for prosecution is required or not. The subsequent order on remand does not show a finding that prima facie case is made out against the petitioner-non-applicant and further that sanction for prosecution is not required under Section 197 Cr.P.C. In view of above, trial court did not record finding on both the issues despite of specific direction. It is moreso when cognizance of offence could not have been taken in absence of sanction for prosecution as per Section 197 Cr.P.C. unless finding is recorded that act of the accused was not in discharge of official duties. There is no finding on record to show that act of the petitioner-non-applicant was not in discharge of her duties. In view of above, this court set aside the order in absence of sanction for prosecution. A reference of judgment in the case of Centre for Public Interest Litigation Vs. Union of India (supra) has been given. The facts of the judgment (supra) do not apply to the present case. In view of above, I do not find any ground to recall the order dated 24th April, 2015.
The criminal misc. application is accordingly dismissed.
[M.N.BHANDARI], J.
FRBOHRA Certificate:
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
FATEH RAJ BOHRA, Sr. P.A.