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2009 DIGILAW 1960 (RAJ)

Parasmal @ Manish v. State Of Rajasthan

2009-09-09

M.N.BHANDARI

body2009
JUDGMENT 1. - By this criminal misc. petition, a challenge has been made to the order dated 30.7.2009 passed on the revision petition preferred by the petitioner, wherein order passed by the Trial Court taking cognizance under section 406 Indian Penal Code . has been affirmed. 2. It is stated that earlier the petitioner had preferred a criminal misc. petition under section 482, Criminal Procedure Code before this Court to challenge the order of cognizance passed by the Magistrate on 29.5.2001. This Court vide order dated 5.3.2009 sent the matter back to the Sessions Judge. Ajmer with a direction that it may be treated as a revision under section 397, Criminal Procedure Code and the matter may be, decided on merits in accordance with law. Pursuant to the direction of this Court, main issue pertaining to limitation for taking cognizance remained undecided more specifically when it was a crucial issue. It was also stated that even other aspects were not considered on merit despite of the order of this Court in the petition under section 482, Criminal Procedure Code The issue of limitation for taking cognizance was raised before the learned Magistrate and that was decided against the petitioner, yet ignoring the aforesaid, the Revisional Court passed an order maintaining the order of cognizance but giving liberty to the petitioner to raise all his objections under section 468, Criminal Procedure Code , which includes the issue of limitation as it was observed that the Revisional Court is not deciding the issue of limitation. The aforesaid order has been challenged mainly on the ground that it is in violation of the order of the High Court and secondly when the issue of limitation has already been decided by the learned Magistrate, then question of raising said objection under section 468, Criminal Procedure Code before the same Court does not arise rather aforesaid issue should have been decided by the Revisional Court. 3. Learned Counsel for respondent No. 2, on the other hand opposed the petition and contended that the matter pending consideration before the Court below for last 12 years. thus favourable order should be passed by this Court so that the trial itself may be concluded within the period of six months. 4. 1 have considered the rival submissions of the parties and perused the record. 5. thus favourable order should be passed by this Court so that the trial itself may be concluded within the period of six months. 4. 1 have considered the rival submissions of the parties and perused the record. 5. Perusal of the order passed by this Court on 5.3.2009, it becomes clear that petition was sent to the Sessions Judge. A finer with a direction to treat it as a revision petition under section 397, Criminal Procedure Code and to decide the petition on merits in accordance with law. The perusal of the order passed on revision does not show that decision has been made on merit rather issue of limitation having been decided by the Trial Court against the petitioners, it ought to have been decided by the Revisional Court as to whether cognizance was taken within a period of limitation or not, but surprisingly the aforesaid issue has not been decided rather petitioner is delegated to invoke the provisions of section 468, Criminal Procedure Code to raise his objection before the learned Magistrate. which includes the issue of limitation. The order aforesaid cannot be said to he proper rather compliance of the order passed by the High Court has not been made as required, thus the impugned order deserves to be set aside and accordingly, the impugned order dated 16.7.2009 is set aside. The matter is remanded back to the Revision Court to hear the matter and decide the same afresh after dealing with all the aspects on merit. The parties are directed to remain present before the Revisional Court on 1.10.2009. In the meanwhile, cognizance order in respect of offence under section 406 Indian Penal Code . shall remain stayed till the decision of the revision and Revisional Court is expected to decide the matter expeditiously. 6. In view of the aforesaid directions, the criminal misc. petition is disposed of.Petition Disposed Off. *******