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2001 DIGILAW 1508 (RAJ)

Shashi @ Diviya v. State of Rajasthan

2001-09-18

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This revision petition has been filed by the petitioner against the order dated 28.7.2000 passed by the learned Additional Sessions Judge No. 1, Bikaner by which the learned Additional Sessions Judge accepted the revision petition filed by the respondents No. 2 to 6, out of which respondent No. 6 is the husband of the present petitioner and set aside the order dated 27.4.2000 passed by the learned Chief Judicial Magistrate, Bikaner by which he rejected the application u/s. 309 Cr.P.C. dated 8.1.1999 filed by the respondents Nos. 2 to 6 and ordered that the evidence of witnesses present in the Court and evidence of other witnesses may be recorded. 2. It arises in the following circumstances : (i) The present petitioner filed a complaint in the Court of Chief Judicial Magistrate, Bikaner on 13.6.1994 against the respondents No. 2 to 6 for committing offence u/ss. 498-A & 406 IPC. The said complaint was sent by the CJM, Bikaner u/s. 156(3) Cr.P.C. to the SHQ,,Kotgate for investigation, where a case was registered and' after usual investigation, a challan was filed against the accused-respondents No. 2 to 6 on 23.7.1996 and since then trial was pending in the Court of Chief Judicial Magistrate, Bikaner and on 27.5.1997 evidence of complainant-petitioner was recorded as PW-1 and thereafter the case was being lingered on for recording the evidence of remaining witnesses by the prosecution. 3. On 8.1.1999, an application u/s. 309 Cr.P.C. was moved in the Court of learned Chief Judicial Magistrate, Bikaner on behalf of accused-respondents No. 2 to 6 praying that since after framing of charges, the evidence of prosecution witnesses have not been recorded within two years, therefore, evidence of prosecution be closed. 4. It may be stated here that on 8.1.1999, four prosecution witnesses, namely, Bishan Lal, Kuldeep Kumar, Ramchandra and Satish Kumar were present, but on that date neither statements of those witnesses were recorded by the learned trial Magistrate nor the application dated 8.1.1999 filed by the accused-respondents No. 2 to 6 was decided. Thereafter the dates were given and that application dated 8.1.1999 was decided by the learned Magistrate on 2 7.4.2000 and the learned Magistrate rejected that application and ordered that evidence of witnesses who were present on 8.1.1999 and further evidence of other witnesses to whom the prosecution wants to produce be recorded. 5. Thereafter the dates were given and that application dated 8.1.1999 was decided by the learned Magistrate on 2 7.4.2000 and the learned Magistrate rejected that application and ordered that evidence of witnesses who were present on 8.1.1999 and further evidence of other witnesses to whom the prosecution wants to produce be recorded. 5. Aggrieved from the order dated 27.4.2000, the accused-respondents No. 2 to 6 filed a revision petition in the Court of learned Sessions Judge, Bikaner and that revision was transferred to the Court of Additional Sessions Judge No. 1, Bikaner and the same was allowed by the learned Additional Sessions Judge No. 1, Bikaner vide order dated 28.7.2000 and the application dated 8.1.1999 filed by the accused-respondents No. 2 to 6 was also allowed inter alia holding that observations made by the Hon'ble Supreme Court in the case of Raj Deo Sharma v. State of Bihar, reported in 1999 Cr.L.R. (SC) 613 would not be helpful to the present petitioner. 6. Aggrieved from the order dated 28.7.2000, this revision petition has been filed by the petitioner. 7. In my opinion the impugned order dated 28.7.2000 passed by the learned Additional Sessions Judge No. 1, Bikaner is palpably wrong and cannot be sustained for the following reasons : (i) It is surprising that on 8.1.1999, many witnesses of the prosecution were present, but on that date statements of those witnesses were not recorded and the application dated 8.1.1999 was decided by the learned Chief Judicial Magistrate on 27.4.2000 and for that the prosecution should not suffer. (ii) Had there been no witness present on 8.1.1999 and thereafter on subsequent dates, the position would have been different, but since witnesses were present on 8.1.1999 and on subsequent dates, it was bounden duty of the Court to record the statements of witnesses and for that failure, the prosecution would not suffer. In these circumstances, the application was rightly rejected by the learned Chief Judicial Magistrate. 8. Even the judgment on which reliance has been placed does not debar the Court from recording the statements of those witnesses who were present on that date. From this point of view also, the impugned order passed by the learned Additional Sessions Judge No. 1, Bikaner is manifestly wrong. 9. 8. Even the judgment on which reliance has been placed does not debar the Court from recording the statements of those witnesses who were present on that date. From this point of view also, the impugned order passed by the learned Additional Sessions Judge No. 1, Bikaner is manifestly wrong. 9. It has been argued by the learned counsel for the respondents No. 2 to 6 that since divorce decree has been passed between the petitioner-complainant and her husband (respondent No. 6), in these circumstances, there is no use of continuing the present proceedings and therefore, it has been submitted that this revision should be dismissed merely on this ground and for that he has placed reliance on the case of Narendra Prasad Pareek v. State of Rajasthan & Anr., reported in RLR 2001(1) 57 . 10. In my opinion, the authority in the case of Narendra Prasad Pareek (supra) would not be helpful to the learned counsel for the respondents as in that case the order was passed by this Court while exercising power u/s. 482 Cr.P.C. and while in the present case the impugned order dated 28.7.2000 has been challenged on the ground of legality and proprietary. Since the impugned order in the present case suffers from basic infirmity and, therefore, it is liable to be set aside. Hence the above submission is not helpful to the learned counsel for the respondents.For the aforesaid reasons, the present revision petition is allowed and the order dated 28.7.2000 passed by the learned Additional Sessions Judge No. 1, Bikaner in criminal revision petition No. 128/2000 is set aside and the order dated 27.4.2000 passed by the learned Chief Judicial Magistrate, Bikaner in Criminal Case No. 200/94 is restored.Revision petition dismissed. *******