Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 1721 (RAJ)

Bharat Singh Gehlot v. State of Rajasthan

2009-07-30

H.R.PANWAR

body2009
JUDGMENT 1. - This criminal misc. petition under Section 482 Criminal Procedure Code is directed against the order dated 10.7.2007 passed by Additional Sessions Judge, (Fast Track) No. 3, Jodhpur (for short "the reivisional Court" hereinafter) in Criminal Revision No. 11 of 2007 whereby while allowing the revision petition filed by the petitioner against the order dated 1.2.2006 passed by Judicial Magistrate No. 5, Jodhpur (for short "the trial Court" hereinafter) in Complaint Case No. 103 of 2004, set aside the order of the trial Court dismissing the application under Section 468 Read with 251 Criminal Procedure Code filed by the accused-petitioner, and directed the trial Court to again record the statement of independent witnesses and pass appropriate order. Aggrieved by the order impugned to the extent directing the trial Court to again record the statement of independent witness and pass a fresh order, the petitioner has filed the instant petition. 2. I have heard learned counsel for the parties. Carefully gone through the order passed by the revisional Court as well as by the trial Court. 3. On a complaint filed by the respondent No. 2 before the trial Court, the trial Court afforded an opportunity to the complainant non-petitioner No. 2 to produce his evidence. The complainant himself appeared and got examined himself as CW-1 and produced his daughter Mamta as CW-2. No other witness was produced by the complainant. The complainant closed his evidence at his own and requested the trial Court to take the cognizance of the offence and issue process against the petitioner. By order dated 15.4.2004, the trial Court took the cognizance of the offence under Section 323 Indian Penal Code. and issued process and in pursuance thereof the petitioner appeared before, the trial Court and filed an application under Section 468 Read with Section 251 Criminal Procedure Code to drop the proceedings as the cognizance is barred by period of limitation as envisage under Section 468 Criminal Procedure Code The trial Court by order dated 1.2.2006 dismissed the said application, against which the petitioner filed a revision and the revisional Court held that there is inimical relation between the parties and there had been certain criminal cases between the parties and, therefore, set aside the order dated 1.2.2006. However, remitted the matter to the trial Court to again record the evidence of the independent witnesses and thereafter to pass a fresh order. However, remitted the matter to the trial Court to again record the evidence of the independent witnesses and thereafter to pass a fresh order. The question for consideration before this Court is as to whether the order of the revisional Court is justified to the extent directing the trial Court to again record the statement of independent witness which the complainant did not wish to produce. 4. From the complaint the facts emerge that one Kansingh Tak said to have expired and on religious ceremony of third day of the death of Kansingh Tak there was a public condolence meeting in public chock. It is stated that in the public condolence meeting many persons including the complainant were sitting there and at that time it is alleged that the petitioner and one Mohindra came on a scooter, one Achal Singh was also sitting there. It is alleged that the petitioner abused complainant respondent No. 2 and kick him. Except the complainant and his daughter, no other and independent witness was produced by the complainant before the trial Court as is evident from the record that complainant himself voluntarily closed his evidence. It is not the case of the complainant that the complainant wanted to produce some other witnesses and the trial Court did not give him opportunity to produce such witnesses. If the occurrence has taken place in a public condolence meeting in public chock held on the death of Kansingh on third day of his death and when there were number of persons and expected to be number of persons and even according to the complainant himself there were number of persons, yet he did not produce any of such independent witnesses to support his case. Had such an occurrence taken place, the complainant would have produced some of the persons present in public condolence meeting as witnesses in support thereof. However, the complainant himself admitted in his statement that there is litigation between the petitioner and the complainant with regards to land dispute. Had such occurrence taken place, there was no reason for the complainant not to have produced independent witnesses whose presence at the time of alleged occurrence has been admitted by the complainant in the complaint itself. However, the complainant himself admitted in his statement that there is litigation between the petitioner and the complainant with regards to land dispute. Had such occurrence taken place, there was no reason for the complainant not to have produced independent witnesses whose presence at the time of alleged occurrence has been admitted by the complainant in the complaint itself. In the circumstances, therefore, the order impugned to the extent directing the trial Court to again record the statement of witnesses is beyond he provisions of Section 398 Criminal Procedure Code and, therefore, the order of the revisional Court to that extent deserves to be set aside. 5. Consequently, the criminal misc. petition is allowed and the order impugned passed by the revisional Court to the extent directing the trial Court to again recprd the statement of independent witnesses is set aside.Petition party allowed. *******