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1999 DIGILAW 698 (RAJ)

Dinesh Chandra v. State of Rajasthan

1999-05-17

G.L.GUPTA

body1999
JUDGMENT 1. - Petitioner Dinesh Chandra, who is facing trial under section 447 and 427 IPC in the Court of Addl. Chief Judicial Magistrate, Salumber, has filed two misc. petitions. Through petition No. 638/97 the petitioner seeks the quashment of criminal proceedings pending against him on the ground of protracted trial. In the second petition, the order dated 12.8.97 passed by the learned Addl. Sessions Judge upholding the order of Addl. Chief Judicial Magistrate has been called in question. 2. Mr. Shah, learned counsel for the petitioner, pointing out that in this matter though the police had given final report, the learned Magistrate proceeded to take cognizance vide order dated 14.10.87, contended that the proceedings against the petitioner be quashed as not a single prosecution witness has been examined as yet. His contention was that in view of the judgment of the Common Cause a Registered Society v. Union of India 1996 Cr.LR (SC) 430 this Court should direct the closure of the case. His further contention was that the act of the petitioner in removing the encroachment from the municipal land related to his duty, and therefore, the petitioner is entitled to protection under section 197 Cr.P.C. and as he has been prosecuted without obtaining sanction from the State Government, the proceedings against him be quashed. 3. The learned P.P., on the other hand, contended that the petitioner himself is responsible for the delay caused in the disposal of the case. His further submission was that it could not be the duty of the petitioner to damage the property causing loss of thousands of rupees to the Public Works Department. 4. I have considered the rival contentions. The case against the petitioner is under Section 447 and 427 IPC. His further submission was that it could not be the duty of the petitioner to damage the property causing loss of thousands of rupees to the Public Works Department. 4. I have considered the rival contentions. The case against the petitioner is under Section 447 and 427 IPC. It comes in the category 2(f) of the judgment of the Common Cause case which is reproduced hereunder- "2(f) where the cases pending in criminal courts under IPC or any other law for the time being in force are punishable with imprisonment upto three years, with or without fine, and if such pendency is for more than two years and if in such cases trial have still not commenced, the criminal court shall discharge or acquit the accused, as the case may be, and close such cases." (emphasis supplied) The Apex Court in the second case of Common Cause, A Registered Society through its Director v. Union of India AIR 1997 SC 1539 which is known as a clarificatory judgment, explained the phrase "non commencement of trial" as employed in paragraph 2(a) to 2(f) of the judgment in the first case. For summons case, the relevant para is II (iii), which is reproduced hereunder - "In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under Section 251 whether they plead guilty or have any defence to make." Thus, the date on which the plea of the accused is recorded, is the date of commencement of the trial of a summons case. 5. In the instant case, the accusation has already been read over to the petitioner on 20.3.91 and his plea recorded, it cannot thus be said that the trial has still not commenced. In paragraph 2(f) in the judgment of the first case it has been stated that the criminal court shall discharge or acquit the accused only when the pendency of the case is more than 2 years and trial has still not commenced. As per the clarificatory judgment the trial commences on the date, the accusation is read over. Since the accusation has been read over the trial has commenced and the petitioner cannot claim the closure of the proceedings on the basis of the judgment of the Apex Court. 6. As per the clarificatory judgment the trial commences on the date, the accusation is read over. Since the accusation has been read over the trial has commenced and the petitioner cannot claim the closure of the proceedings on the basis of the judgment of the Apex Court. 6. Moreover a perusal of the file of the lower court clearly shows that the petitioner is responsible for the delay caused in the trial of the case. After -the accusation was read over to him on 20.3.91, the petitioner filed an application under section 197 Cr.P.C. on the next date of hearing i.e. on 19.4.91, the date on which the evidence was to be recorded. This application was dismissed by the learned Magistrate vide order dated 29.7.91. The petitioner challenged that order by preferring revision petition No. 19/91 in the Court of Sessions. The revision remained pending in that Court upto 16.7.94 when the revision was dismissed. The record of the case reached the trial court on 2.8.94. The revisional court had directed that the application of the petitioner be decided afresh after hearing the parties. The learned Magistrate heard the parties and again dismissed the application of the petitioner vide order dated 12.7.96. The petitioner challenged that order by preferring revision petition No. 16/96 which was dismissed by the learned Sessions Judge vide order dated 12.8.97. Thereafter the petitioner filed the instant misc. petition in this Court on 28.7.97 and obtained the stay order. 7. The above narration of facts clearly shows that the petitioner has himself caused delay in the disposal of the case by making applications and challenging the order again and again to the higher courts. The Apex Court in the Second Judgment of Common Cause has clearly held that where the delay in the disposal of the case is attributable to the accused he cannot have the advantage of the directions given in the first judgment of the Common Cause. That being so, there is no merit in the contention of Mr. Shah that the proceedings of the case are liable to be quashed in the light of the judgment of the Common Cause case. 8. As to the second contention, at the out set, it may be stated that the petitioner has filed this second revision in the form of misc. Shah that the proceedings of the case are liable to be quashed in the light of the judgment of the Common Cause case. 8. As to the second contention, at the out set, it may be stated that the petitioner has filed this second revision in the form of misc. petition, which is barred by Section 397(3) Cr.P.C. The petitioner had already challenged the order rejecting his application by filing revision before the Sessions Judge. Under Section 397(3) Cr.P.C. the second revision cannot be filed against the same order. The petition is, therefore, liable to be dismissed on this ground alone. 9. Even on merits, I find no substance in the contention of Mr. Shah. The allegations against the petitioner are that he manhandled the officials of the P.W.D., abused them, threw away the drums in the river, and demolished the tin shed. It may be that the petitioner thought that the land on which PW.D. was having possession belonged to the Municipality but such acts prima-facie cannot be said to be in the discharge of official duty. In any case, the petitioner may bring the facts on record during trial of the case on which he claims that his act had relationship with his duty and the learned Magistrate may consider such plea and pass appropriate order. 10. Consequently, there is no merit in both these petitions and they are hereby dismissed.Petitions Dismissed *******