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Rajasthan High Court · body

1996 DIGILAW 941 (RAJ)

Kumari Radha v. Raju @ Rajkumar

1996-08-20

M.A.A.KHAN

body1996
Honble KHAN, J. – By this petition U/s. 397 Cr.P.C. the petitioner has challenged the legality and validity of the orders dated 19.1.91 as passed by the learned Sessions Judge, Tonk U/s. 397 Cr.P.C. and the order dated 26.8.95 as passed by the Addl. Chief Judicial Magistrate, Niwai, Distt. Tonk. Brief reference to the facts leading to the passing of the said orders by two different courts at two different times may be made. (2). On petitioners report a case U/s. 147, 149, 302, 459, 325 and 323 IPC was registered against the non-petitioner and after investigation the non-petitioners were chargesheeted in the Court of Chief Judicial Magistrate, Tonk. The Chief Judicial Magistrate, Tonk committed the case to the Court of Sessions Judge, Tonk as the offences involved in the case were also triable by the Court of Sessions Judge. Vide his order dated 19.1.91 in Session case No. 26/90 passed U/s. 227/228 Cr.P.C., the learned Sessions Judge held that no offence punishable U/s. 459 and 302 IPC were prima facie committed in the present case. Therefore, he passed an order U/s. 228(2((1) Cr.P.C. directing the case to be sent to the Chief Judicial Magistrate for disposal according to law. It appears that after the receipt of the case record from the Court of Sessions Judge, the Chief Judicial Magistrate on his own or may be under the orders of the Sessions Judge, made over the case to the Addl. Chief Judicial Magistrate, Niwai for disposal according to low. (3). When the case was pending before the Addl. Chief Judicial Magistrate, Niwai the petitioner moved an application U/s. 216 Cr.P.C. requesting the Magistrate to frame a charge for the offence U/ss. 302, 460 IPC against the respondents. One similar application appears to have already been pending on the record of the case since 20.11.89. After hearing the parties the learned Addl. Chief Judicial Magistrate held that since the learned Sessions Judge vide his order dated 19.1.91 had already discharged the respondents of the offences U/ss. 459 and 302 IPC, no question of framing the charge U/s. 460, 302 IPC arises. It may be observed that the offence u/s. 460 is triable exclusively by the Court of Sessions. It is in that manner that not only the order dated 26.8.95 passed by the learned Addl. 459 and 302 IPC, no question of framing the charge U/s. 460, 302 IPC arises. It may be observed that the offence u/s. 460 is triable exclusively by the Court of Sessions. It is in that manner that not only the order dated 26.8.95 passed by the learned Addl. Chief Judicial Magistrate but also the order passed by the learned Sessions Judge on 19.1.91 in Sessions case No. 2690 are being challenged through the present petition. (4). It is true that private party may also invite the attention of this court to any illegality or invalidity in the orders made by the inferior courts, and thus ask this court to exercise its jurisdiction U/s. 397 Cr.P.C. but the manner in which the petitioner has tried to get over the order passed by the Sessions Judge on 19.1.91 is deplorable. The petitioner could not explain that if she was feeling aggrieved against that order why did she not try to get the same examined by this court at the appropriate time. It is high time that private persons are permitted for getting such belated orders of the inferior courts examined by this court and thus waste the time of this court. This court records its displeasure at such conduct of the petitioner. It was after the lapse of about five years that the order passed by the learned Sessions Judge was sought to be revised by this court and that too when the Magis- trate had declined to fall in line with the contention of the petitioner. Had the Magistrate directed framing of charge U/s. 460 IPC against the respondents then perhaps the petitioner would have not noticed any illegality or invalidity in the order made by the Sessions Judge on 19.1.91. (5). So far as the legality and validity of the order dated 19.1.91 is concerned it was urged that the Sessions Judge had no power to pass an order U/s. 227 as well as U/s. 228 Cr.P.C at the same time. This argument is totally misconceived. The Sessions Judge on the receipt of a case committed to him has to consider as to what charges are to be framed in the case. This argument is totally misconceived. The Sessions Judge on the receipt of a case committed to him has to consider as to what charges are to be framed in the case. If in his opinion the offences made out on examination of the record by him is not triable by Court of Sessions then even if the case has been committed to him for such offence, he may discharge the accused of such offence as infact none has been committed in that case, and send the record to the Chief Judicial Magistrate for trying the offences, which are not triable by the Court of Sessions. That means a composite order U/s. 227/228 Cr.P.C. may well be passed by the Sessions Judge. (6). The other argument of the learned counsel was that though Narendra Kumar Jain who appeared as Public Prosecutor in this case before the Sessions Judge, Tonk, had been a counsel of the respondents. The learned counsel for the petitioner may, if he so likes, file a complaint in that behalf to the State Bar Counsel as I do not find any evidence on my record to support such contention of the learned counsel. (7). The learned counsel further stated that the learned Sessions Judge is duty bound to frame charges U/s. 228 while sending the case to the learned Chief Judicial Magistrate. Since the order had been made in this case as back as on 19.1.91 this court would not like to express its opinion on this aspect of the case. Suffice it to say that not framing of the charges by the learned Sessions Judge U/s. 228 (2)(1), may at the most, be an irregularity curable U/s. 465 Cr.P.C. Merely on this ground the order passed by the learned Sessions Judge on 19.1.91 can not be set aside. (8). So far as order passed by the Magistrate on 26.8.95 is concerned, I find no error of jurisdiction that order as the learned Magistrate could not have sit in appeal or revision over the order passed by the learned Sessions Judge on 19.1.91. He had not power to frame a charge U/s. 460 IPC when the learned Sessions Judge, in exer- cise of his powers U/s. 227/228, had discharged the respondents of the offences U/s. 459/302 and such order of the learned Sessions Judge had become final. (9). He had not power to frame a charge U/s. 460 IPC when the learned Sessions Judge, in exer- cise of his powers U/s. 227/228, had discharged the respondents of the offences U/s. 459/302 and such order of the learned Sessions Judge had become final. (9). To sum up, I find no error of jurisdiction in either of the impugned orders challenged through the present petition. This court records its displeasure at consolidation of two different orders for the purposes of presenting one applica- tion. Such practice is required to be given up as early as possible. Therefore, the petition is dismissed.