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2006 DIGILAW 521 (RAJ)

Mst. Nanni v. Kedar

2006-02-15

R.S.CHAUHAN

body2006
Judgment R.S. Chauhan, J.-The petitioner has challenged the order dated 01.05.2003 whereby the Sessions Judge, Sawai Madhopur had allowed the revision petition filed by the accused respondents and had quashed the cognizance order dated 010.2002 passed by the Judicial Magistrate against the accused respondents for offence under Sections 420 and 120-B, IPC. 2. The brief facts of the case are that on 03.07.1992, the petitioner had filed a complaint in the Court wherein she had stated that one Jameel Khan @ Abdul Rehman had fradulently sold her land to Kanhaiya, Maddu, Shriphool and Maujiram by claiming himself to be the owner of the land. The said sale-deed was executed in their favour by Jameel Khan. In the said sale-deed the accused respondents, Kedar and Heera Lal, had identified Jameel Khan. The said complaint was subsequently sent for further investigation under Section 156(3) of the CrPC (henceforth to be referred to as the Code for short). After a thorough investigation the police filed a charge-sheet only against Jameel Khan @ Abdul Rehman for offence under Section 420 IPC. Even before the trial began, the petitioner had submitted an application under Section 319 of the Code wherein she had claimed that Jameel Khan had shown himself to be the owner of her land by changing his name and his fathers name. Both the accused respondents had identified Jameel Khan as the owner of the land. However, both the accused respondents were well aware of the fact that Jameel Khan is not the true owner of the land and is not even the person he is claiming to be while signing the sale-deed. Therefore, both the accused respondents were equally a party to the offence of cheating. Hence, cognizance should be taken against them under Section 319 of the Code. However, as the trial had not started by then, therefore, vide order dated 08.05.1997, the learned trial Court was pleased to dismiss the said application while giving liberty to the petitioner to file the said application after the evidence was recorded. Thus, after the evidence of the prosecution was over, the learned Public Prosecutor again filed an application under Section 319 of the Code wherein he prayed that cognizance be taken against the accused respondents for offence under Section 420 read with Section 120-B, IPC. Thus, after the evidence of the prosecution was over, the learned Public Prosecutor again filed an application under Section 319 of the Code wherein he prayed that cognizance be taken against the accused respondents for offence under Section 420 read with Section 120-B, IPC. Vide order dated 010.2002 the learned trial Court was please to take cognizance against the accused respondents and to summon them by bailable warrants. Since, the accused respondents were aggrieved by the order dated 010.2002 they filed a revision petition before the Sessions Judge, Sawai Madhopur. Vide order dated 01.05.2003, the learned Sessions Judge, Sawai Madhopur was pleased to accept the revision petition and quashed and set aside the order dated 010.2002. Hence, this present petition before us filed by the complainant petitioner. 3. Mr. Rajendra Kumar Sharma, learned Counsel for the petitioner has argued that when the accused respondents went to the office of the Registrar for registering the sale-deed allegedly signed by Jameel Khan @ Abdul Rehman, they were well aware of the fact that he is neither the owner of the land which was being sold, nor the person he claims to be. But in order to cause a wrongful loss to the petitioner and a wrongful gain to Jameel Khan they entered into a criminal conspiracy to sell her land. Thus, they were conspirators for commission of the offence committed by Jameel Khan @ Abdul Rehman. He has further contended that only those persons who are well acquainted with the seller and who can identify the seller would be taken by the seller to the Registrars office. Therefore, the learned Judicial Magistrate was justified in taking cognizance against them after recording the evidence of the prosecution witness. He has further contended that the impugned order dated 01.05.2003 is a non-speaking order as the learned Sessions Judge has merely stated that there is no basis for taking cognizance against the accused respondents. However, the learned Sessions Judge has not stated any reason for coming to the conclusion that the cognizance order is an illegal one. 4. On the other hand, Mr. Biri Singh, learned Counsel for the Respondent Nos. 1 and 2, has argued that the order passed by the learned Judicial Magistrate was passed after the prosecution evidence was complete and after the statement of the accused Jameel Khan @ Abdul Rehman was recorded. 4. On the other hand, Mr. Biri Singh, learned Counsel for the Respondent Nos. 1 and 2, has argued that the order passed by the learned Judicial Magistrate was passed after the prosecution evidence was complete and after the statement of the accused Jameel Khan @ Abdul Rehman was recorded. Therefore, it was to late in the day for the learned Judicial Magistrate to take cognizance and to issue bailable warrants against the accused respondents. Hence, according to him, the learned Sessions Judge was completely justified in quashing the cognizance order passed by the learned Judicial Magistrate. Similar Mr. Arun Sharma, learned Public Prosecutor has supported the impugned order. 5. We have heard all the three learned Counsels for the parties and have examined the impugned order. 6. It is not only the duty of the Court to save the innocent, but it is also the duty of the Court to try and convict the accused. In case during the course of trial sufficient evidence is brought on record to indicate the involvement of a person in the alleged offence who has not been charge-sheeted by the police, then it is the legal duty of the Court to take cognizance and to issue process against such a person under Section 319 of the Code. In the instant case Jameel Khan @ Abdul Rehman could not have established his identity before the Registrar until and unless he was identified by the present accused respondents. Surely Jameel Khan would not have taken two strangers to identify him. Infact he would have taken the persons who were familier with his identity. Yet both the accused respondents have identified him as the owner and by name and by an identity which is not his own. Clearly when they identified him in such a capacity they were well aware of the fact that he does not have any such capacity as he claims to have in the sale-deed. Therefore, prima facie, it seems that they were part of a criminal conspiracy to commit an offence under Section 420, IPC. Since, their involvement is prima facie made out by the evidence on record, the learned Judicial Magistrate was certainly justified in issuing process against them. The learned Sessions Judge, on the other hand, has quashed the cognizance order on the ground that the identity of the accused respondent was known from the beginning of the case. Since, their involvement is prima facie made out by the evidence on record, the learned Judicial Magistrate was certainly justified in issuing process against them. The learned Sessions Judge, on the other hand, has quashed the cognizance order on the ground that the identity of the accused respondent was known from the beginning of the case. It is not as if the prosecution had not moved an application under Section 319 of the Code even earlier, but the said application was dismissed on the ground that such application is not maintainable until and unless the evidence starts during the course of the trial. The prosecution had subsequently moved the said application after there was ample evidence which was recorded during the course of the trial. Hence, the reason given by the learned Sessions Judge is clearly untenable. 7. In the result we quash and set aside the order dated 01.05.2003 passed by the learned Sessions Judge, Sawai Madhopur and restore and confirm the order dated 010.2003 passed by the Judicial Magistrate, Sawai Madhopur in Criminal Case No. 305/1992 whereby he had taken cognizance of the offence under Section 420 read with Section 120-B, IPC against the Respondent No. 1 and 2. However, it is clarified that any observations made in this order would not adversely affect the appreciation of evidence against the accused respondents during the course of trial. 8. With these observations this petition is allowed.