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Rajasthan High Court · body

2010 DIGILAW 614 (RAJ)

Deepak v. State of Rajasthan

2010-03-16

M.N.BHANDARI

body2010
JUDGMENT 1. - By this miscellaneous petition, a challenge has been made to the order dated 15.01.2010 whereby the revision petition filed by the petitioner was dismissed. Cognizance of offence under Section 3/4 of Rajasthan Public Gambling Ordinances, 1949 (hereinafter referred to as "the R.P.G.O.") were taken against the petitioner vide order dated 29.05.2009. Aggrieved by the order of cognizance, petitioner preferred a revision petition before the Session Judge. The revision petition so preferred by the petitioner was also dismissed, hence this petition. 2. The only argument raised by the learned counsel for the petitioner is that the offence under Section 3/4 of the R.P.G.O. is non-cognizable offence, hence without compliance of the provisions of Section 155(2) of Cr.P.C., the police was not having authority to search and make investigation. The aforesaid aspect was not properly considered by learned Revisional Court whereas the provisions of Section 155(2) of Cr.P.C. are mandatory in nature. This Court in the case of Vikky v. State of Rajasthan reported in 2006(1) Cr.L.R. (Raj.) 133 held that for non-cognizable offence, compliance of Section 155(2) of Cr.P.C. is mandatory. 3. Learned Public Prosecutor, on the other hand, opposed this petition and submitted that Section 5 of the Ordinance of RPGO overrides Section 155(2) of Cr.P.C. The R.P.G.O. is a special legislation, thus prevails over general provision of Cr.P.C. In the present matter, after due authorization, the SHO made search wherein the petitioner was found involved in gambling. The case was accordingly registered and cognizance of the offence was taken by the competent Court. The aforesaid aspect has otherwise been considered by the Court below carefully. 4. I have considered the submissions made by the learned counsel for the parties and perused the record carefully. 5. The only argument raised is that provisions of Section 155(2) of the Cr.P.C. has not been complied though the matter pertains non-cognizable offence. The search so made by the police become illegal so as the proceedings pursuant to it. I have considered the aforesaid submission, however, before appreciating it further, it is necessary to refer Section 4 of the Cr.P.C., which is quoted hereunder: "Section 4. Trial of offences under the Indian Penal Code and other laws.(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired to, tried, and otherwise dealt with according to the provisions hereinafter contained. Trial of offences under the Indian Penal Code and other laws.(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired to, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." 6. Perusal of the aforesaid provision reveals that other than the offence under IPC, the manner and the place for investigation, trial etc. would be as per the provisions of Cr.P.C. subject to any other enactment providing manner and place otherwise. Section 5 of R.P.G.O provides a different manner than provided under Section 155(2) of the Cr.P.C. In view of the aforesaid when SHO was authorised by the competent authority to make search of the house, it cannot be said that action of the police was illegal or it should have been subject to provision of Section 155(2) of Cr.P.C. The special legislation prevails over general legislation more so when Section 4 of Cr.P.C. clarifies the position aforesaid and shows that special enactment will prevail over general enactment of Cr.P.C. 7. In view of the aforesaid, I do not find any error in the order passed by the Revisional Court. This is more so when a petition under Section 482 of Cr.P.C. is nothing but a second revision petition as the order under challenge was passed by the Revisional Court. The case is not made out to fall in the category of rare of rarest cases to entertain a petition against the order passed by the Revisional Court. 8. For the reasons given above, the petition filed under Section 482 of Cr.P.C. is dismissed.Petition Dismissed. *******