Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 2159 (RAJ)

Kishore Nal Khemawat v. State of Rajasthan

2011-10-12

SANDEEP MEHTA

body2011
JUDGMENT 1. - Heard learned counsel for the parties. 2. The misc. petition has been filed on behalf of the petitioner seeking quashing of the criminal proceedings going on against him in the Court of Judicial Magistrate, First Class, Desuri, Pali in Criminal Case No. 474/2006 for offence under Section 432 I.P.C. 3. Counsel for the petitioner has submitted that in the case, the respondent No. 2 filed an F.I.R. at P.S. Rani on 27.7.1997 with the allegation that on Rani-Khimel Road, near the farm of the petitioner, there is a public canal as public way since ages. It has been alleged that the petitioner obstructed the said canal due to which the flow of water was obstructed and there was water logging in various places of Rani resulting into the properties belonging to number of people being damaged. On this report, F.I.R. No. 84/1997 was registered and investigation commenced. The police after conclusion of the investigation came to a finding that no obstruction has been made by the petitioner to any public canal and water logging was on court of excessive rains which took place that year. A finding was also arrive at that Khasra No. 369/722 was Khatedari land of the petitioner which has been converted into urban land and as per the revenue record, there was no passage or canal through the said land. The police also found that on a site inspection being made, no obstruction of any flow of water was found in the premises of the petitioner and that the case of water logging was that the Railway has constructed broad gauge lines just before the rains due to which lot of construction material was lying at the site which caused obstruction in the flow of water resulting into water logging. It was also found that the respondent No. 2's land was just adjacent to the petitioner's land and the respondent No. 2 wanted that a road should be taken out from the petitioner's land so that the value of the respondent No. 2's land increases. The said final report giving detailed reasonings was submitted before the Court blow took cognizance against the petitioner for offence under Section 432 I.P.C. without giving any reference to the reasons of the police given in the final report. 4. The petitioner initially challenged the said order taking coginzance by filing S.B. Criminal Misc. The said final report giving detailed reasonings was submitted before the Court blow took cognizance against the petitioner for offence under Section 432 I.P.C. without giving any reference to the reasons of the police given in the final report. 4. The petitioner initially challenged the said order taking coginzance by filing S.B. Criminal Misc. Petition No. 1382/2007 but his Court holding that the order taking cognizance was revisable, proceeded to reject the petition of he petitioner on 2.4.2008 observing that the petitioner has a liberty to challenge the order by filling revision. Now this petition under Section 482 Cr.P.C. has been filed seeking quashing of the entire proceedings going on against the petitioner as being abuse of process of the Court. 5. Assailing the proceedings, learned counsel for the petitioner submitted that initially the learned Magistrate had accepted the F.R. given by the police vide order dated 4.2.1999. The respondent No. 2 went in revision and the revisional Court remanded the matter back to the Magistrate vide order dated 15.6.2001 whereupon the Magistrate vide order dated 15.6.2001 whereupon the Magistrate again accepted the F.R. by a detailed order dated 9.5.2002. The respondent No. 2 again preferred revision against the order dated 9.5.2002 and the revisional Court once more set aside the order of the Magistrate and remanded the matter back to the Judicial Magistrate by order dated 20.11.2003. Thereupon on the remand so being made, cognizance has been taken in the year 2006. 6. Assailing the order of the Magistrate and the proceedings being taken against the petitioner, learned counsel appearing of behalf of the petitioner has submitted that detailed grounds by the police in the F.R. were specifically to the effect that the petitioner never raised any obstruction in the flow of water. It has further been submitted that the land on which the construction is alleged to have been made was found by the police to be in the name of the petitioner as per the revenue records and as such, the claim of the respondent No. 2 that the obstruction was made on a public water way is absolutely unjustified. It has further been submitted that the land on which the construction is alleged to have been made was found by the police to be in the name of the petitioner as per the revenue records and as such, the claim of the respondent No. 2 that the obstruction was made on a public water way is absolutely unjustified. It has further been submitted that the case has already has two rounds of litigation and the Magistrate has accepted F.R. twice and it is in the third inning that now cognizance has been taken against the petitioner for offence under Section 432 I.P.C., which is absolutely unjustified. 7. Per contra, learned Public Prosecutor as well as learned counsel for the respondent No. 2 have supported the order taking cognizance. 8. I have considered the arguments advanced at the bar and perused the record of the case. 9. Looking to the facts and circumstances of the case and particularly, looking to the fact that the result of investigation was to the effect that on a physical verification being made by the police, no obstruction was found to be made by the petitioner in any natural flow of water and looking to the fact that the respondent No. 2 was having an interest in the creation of such a passage so that the respondent No. 2 may have a direct access to his property from the main road, this Court is of the opinion that permitting the continuance of these proceedings against the petitioner in a case instituted in the year 1997 is nothing but an abuse of process of Court. The Magistrate, whilst taking cognizance against the petitioner on the basis of a F.R., was required to give reasons, which has not been done in the instant case. 10. Resultantly, the misc. petition is allowed and the proceedings pending against the petitioner Criminal Case No. 126/1997 arising out or F.I.R. No. 84/1997 (F.R. No. 35/1997) of P.S. Rani are herby quashed. 11. Stay application also stands disposed of.Petition allowed *******