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2006 DIGILAW 2307 (RAJ)

Devi Shanker v. State of Rajasthan

2006-07-21

H.R.PANWAR

body2006
JUDGMENT 1. Heard learned counsel for the petitioner and the learned counsel appearing for the non-petitioner No. 2. 2. By the instant criminal miscellaneous petition under Section 482 Cr.P.C. the petitioner has assailed the order dated 7.4.2005 passed by the Chief Judicial Magistrate, Pali whereby the application filed by the petitioner under Section 468 Cr.P.C. was dismissed. The non-petitioner filed the F.I.R. on 2.3.2004 at Mahila Thana, Pali against the petitioner for the offences under Sections 498-A and 406 I.P.C. After investigation, the police filed the challan. The trial Court took cognizance of the offence on 17.6.2004. Thereafter, the trial Court framed charges on 25.8.2004. The petitioner filed an application under Section 468 Cr.P.C. on 5.4.2005 seeking dropping of the proceedings on the ground that the proceeding is barred by period of limitation. That application came to be dismissed by the order impugned. It is contended by the learned counsel that the marriage was solemnised between the parties in the year 1993 and after ten years of marriage, the F.I.R. was lodged and therefore, the cognizance is barred by the period of limitation. Learned counsel for the non-petitioner supported the order impugned. 3. On careful perusal of the order impugned, in my view, the Court below was justified in dismissing the application. Once the trial Court took cognizance and thereafter framed charge, the order taking cognizance as also the order framing charge is a final order. These orders have not been challenged by the petitioner but the petitioner by a petition under Section 468 Cr.P.C. seeks recalling of these orders and discharge. 4. In Adalat Prasad v. Roop Lal Jindal and others, JT 2004 (7) SC 243 , Hon'ble Supreme Court has held as under:- "15. It is true that if a magistrate takes cognizance of an offence, issues process Without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence, in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of Code." 5. Hence, in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of Code." 5. This view was reiterated by the Hon'ble Supreme Court in Subramanium Sethuraman v. State of Maharashtra and another, AIR 2004 SC 4711 wherein it was held that such an order made at the preliminary stage being interlocutory the same cannot be reviewed or reconsidered by the Magistrate there being no provision under the Code for review of order by the same Court, hence, it is impermissible for the Magistrate to reconsider his decision issuing process and in absence of any specific provision to recall such order. 6. On careful perusal of the F.I.R, prima facie offences under Sections 498-A and 406 I.P.C. are, made out and charge has rightly been framed by the trial Court vide order impugned. In the circumstances, therefore, it cannot be said that the offence punishable under Section 406 I.P.C. is barred by period of limitation. For the offence of criminal breach of trust, the period of limitation starts from the period of refusal to return the articles of dowry entrusted to the accused persons. In the circumstances, therefore, the order impugned dated 17.4.2005 does not call for any interference by this Court. The petition is dismissed.The stay petition also stands disposed of.Appeal dismissed. *******