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1999 DIGILAW 176 (RAJ)

Om Prakash v. State of Rajasthan

1999-02-11

G.L.GUPTA

body1999
Honble GUPTA, J.–This misc. petition is directed against the order dt. 22.3.94 passed by the learned Judicial Magistrate, Ladnu in Cr. Case No. 35/92 (Vaidya Madanlal vs. Om Prakash). (2). The case has chequered history. It is the third time that this matter has come to this Court, though it is yet at the initial stage. (3). Vaidya Madanlal filed criminal complaint against Omprakash and others (petitioners) in the court of Judicial Magistrate, Deedwana under Sections 406, 420 and 120B IPC on 28.3.87. The allegations were that Om Prakash was already married yet he caused the complainants to believe that he was unmarried and therefore Shyama was married to him. The Judicial Magistrate after holding enqui- ry issued process against the petitioners vide order dt. 18.5.87. (4). That order was challenged in this Court by way of misc. petition. The contention of the petitioner was that the Judicial Magistrate of Deedwana had no jurisdiction to take cognizance in the matter. This Court vide order dt. 19.11.91 directed the Judicial Magistrate, Deedwana to first decide the question of jurisdic- tion within a period of eight months. Thereafter the learned Magistrate vide order dt. 6.7.92 held that he had no jurisdiction in the matter. He at the same time sent the matter to the Chief Judicial Magistrate for forwarding the same to the Court having jurisdiction. (5). That order was challenged by preferring Misc. Petition no. 313/92 which was decided by this Court on 12.8.92. This Court held that the order of Magistrate sending the case to the Chief Judicial Magistrate for onward transmission to the competent court was not according to law. This Court directed the Magistrate to return the complaint to the complainant under Section 201 Cr.P.C. to be presented before the proper court having jurisdiction. (6). Thereupon the complaint was returned to the complainant who filed the same in the Court of Judicial Magistrate, Ladnu on 22.10.92. The Judicial Magistrate, Ladnu summoned the petitioners in the case on the basis of the earlier proceedings held in the Court of Judicial Magistrate, Deedwana. On appearance, the accused petitioners filed an application that the cognizance could not be taken against them without recording evidence by the Judicial Magistrate, Ladnu and the cognizance should be set aside. This application was rejected by the Magistrate vide order dt. 22.3.94. It is this order which has been called in question in this misc. petition. On appearance, the accused petitioners filed an application that the cognizance could not be taken against them without recording evidence by the Judicial Magistrate, Ladnu and the cognizance should be set aside. This application was rejected by the Magistrate vide order dt. 22.3.94. It is this order which has been called in question in this misc. petition. (7). Mr. Soni, vehemently contended that once this Court had held that the Judicial Magistrate, Deedwana had no jurisdiction to entertain the matter the pro- ceedings taken in that court were without jurisdiction and no cognizance could be taken on the basis of the evidence recorded by the Judicial Magistrate, Deedwana, and hence the impugned order is liable to be set aside. (8). Mr. Joshi, on the other hand, contends that the petitioners were summoned by the Judicial Magistrate, Ladnu on the evidence recorded by a Judicial Magistrate, and therefore, at the most there was irregularity which according to him does not vitiate the proceedings. Relying on Section 460(e) Cr.P.C., he urges that if any Magistrate not empowered by law to take cognizance of an offence under clause (a) or (b) of sub-section (1) of Section 190 takes cognizance, the proceedings are not vitiated. (9). There is merit in the contention of Mr. Soni. When this Court had held that the Judicial Magistrate, Deedwana had no jurisdiction to entertain the matter, and further directed the return of the complaint for presentation in the proper Court, it clearly means that the entire proceedings taken by the Judicial Magistrate, Deedwana were held to be without jurisdiction. It is true that the order of taking cogniza- nce was not set aside by this Court in express terms but that does not matter. As this Court held that the Judicial Magistrate, Deedwana had no jurisdiction and dire- cted the returning of the complaint to the complainant it tant amounted to setting aside of the order of taking cognizance by the Judicial Magistrate, Deedwana. (10). It is difficult to accept the contention of Mr. Joshi that the proceedings taken by the Judicial Magistrate, Deedwana are protected under Section 460(e) Cr.P.C. The case is at the initial stage. The provisions of Section 460 Cr.P.C. can be made applicable after the case makes some headway and it is found that the Magistrate erroneously in good faith did the thing for which he was not empowered. Joshi that the proceedings taken by the Judicial Magistrate, Deedwana are protected under Section 460(e) Cr.P.C. The case is at the initial stage. The provisions of Section 460 Cr.P.C. can be made applicable after the case makes some headway and it is found that the Magistrate erroneously in good faith did the thing for which he was not empowered. Section 460 Cr.P.C. is enabling provision which cannot be pressed into service at the initial stage of the case. The learned Judicial Magistrate has erred when on the basis of Section 460(e) Cr.P.C. he held that the cognizance stood regularised. After the order of this Court dt. 12.8.92 the evidence recorded or any order passed by the Judicial Magistrate, Deedwana ceased to have any legal effect. That being so, the learned Judicial Magistrate, Ladnu has committed error in rejecting the objection taken by the petitioners. (11). Consequently, the impugned order dt. 22.3.94 is set aside. The Judicial Magistrate, Ladnu is directed to proceed with the matter in accordance with law.