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2011 DIGILAW 2581 (RAJ)

Madeena v. State of Rajasthan

2011-11-25

SANDEEP MEHTA

body2011
JUDGMENT 1. - The aforesaid revision petition has been filed on behalf of the petitioner, who is the complainant in the matter. The petitioner filed a First Information Report against the respondents No. 2 to 9 and the police, after investigation, submitted a Final Report in the Court of the Additional Chief Judicial Magistrate, Ratangarh, District Churu. The learned Additional Chief Judicial Magistrate issue notice to the petitioner -complainant and on her appearing, the petitioner filed a protest petition before the learned Magistrate, on which an inquiry was conducted under Sections 200 and 202 Cr.P.C. The statement of the petitioner - complainant and her witnesses were recorded and thereafter the learned Magistrate, by the order dated 24.7.2008, proceeded to summon the respondents for the offences under Sections 498-A, 406 and 120-B I.P.C. The respondents No. 2 to 9 herein filed a miscellaneous petition before this Court challenging the aforesaid order, which was registered as S.B. Criminal Miscellaneous Petition No. 1137/2008. In the miscellaneous petition, a challenge was given to the order issuing process on merit. This Court, whilst considering the miscellaneous petition on 9.9.2008, came to the conclusion that from the material available on record, it cannot be said that on the face value of the case, there existed no material for taking cognizance and accordingly the order of taking cognizance was found to be just and proper, but the direction of the learned Magistrate to issue Warrants of arrest qua respondents Sikander Ali, Firoz Khan, Sultan Khan and Asgar Khan was modified and it was directed that against them bailable warrants shall be issued. 2. Surprisingly enough, the respondents herein challenged the very same order of the learned Magistrate dated 24.7.2008 by way of criminal revision petition filed before the Additional Sessions Judge, Ratangarh, District Churu on 16.4.2009. The factum of respondents having approached to this Court against the order dated 24.7.2008 passed by the Additional Chief Judicial Magistrate was deliberately concealed in the revision petition. The learned Additional Sessions Judge, whilst considering the revision petition filed by the respondents No. 2 to 9, by the impugned order dated 19.6.2009, accepted the revision petition and set-aside the order dated 24.7.2008 passed by the learned Magistrate issuing process. The learned Additional Sessions Judge, whilst considering the revision petition filed by the respondents No. 2 to 9, by the impugned order dated 19.6.2009, accepted the revision petition and set-aside the order dated 24.7.2008 passed by the learned Magistrate issuing process. It is against the said order dated 19.6.2009 passed by the learned Additional Sessions Judge that the petitioner complainant has approached this Court by way of revision petition seeking quashing of the order of the Revisional Court whereby the learned Revisional Court has quashed the order issuing process against the respondent Nos. 2 to 9 herein. 3. Mr. Pradeep Choudhary, learned counsel for the petitioner, submitted that the respondents herein were guilty of concealing material facts from the revisional Court and that order of the learned Revisional Court deserves to be set aside on this count alone that that factum of challenging the order of the trial Magistrate dated 24.7.2008 issuing process by way of filing miscellaneous petition before this Court was concealed whilst filing the revision petition before the Additional Sessions Judge. It has further been submitted the impugned order dated 19.6.2009 passed by the learned Additional Sessions judge is also illegal because the learned Additional Sessions Judge, whilst accepting the revision, has held that (1) none of the allegations made by the complainant constituted an offence within the territorial jurisdiction of the Court at Ratangarh, and (2) the order taking cognizance was also time-barred. Mr. Pradeep Choudhary submitted that both these findings of the learned Additional Sessions Judge are per se perverse and contrary to the material available on the record. It has been submitted that in the complainant itself, the complainant-petitioner has specifically averred that her marriage with the respondent No. 2 Sikander Ali took place at Ratangarh and that the "Stridhan" of the complainant was handed over and entrusted to respondent No. 2 Sikander Ali and respondent No. 3 Firoz Khan at Ratangarh. He, thus, submitted that part of the cause of action accrued when the entrustment of dowry articles was made, which is one of the ingredients for the offence of breach of trust which took place at Ratangarh and, thus, by virtue of Section 171(d) and Section 181(4), Cr.P.C. the Court at Ratangarh very much has the jurisdiction to try the case. 4. 4. It has further been submitted that the findings of the learned Revisional Court that the proceeding were time-barred was also unjust because what is relevant for the purpose of-calculating the time-limit is the date of filing of the complaint as per the decisions of the Hon'ble Supreme Court in the cases of Bharat Damodar Kale & Anr. v. State of Andhra Pradesh, AIR 2003 SC 4560 and Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762 . It has further been submitted that the police filed the Final Report in this matter on 7.6.2005 and the learned Additional Chief Judicial Magistrate accepted the Final Report on that very day without any notice to the petitioner-complainant, on which the petitioner-complainant filed the revision petition which was accepted and the matter was remanded back to the trial Court and the trial Court passed the order for proceeding under Sections 200 and 202 Cr.P.C. on 31.10.2005, which was the date on which cognizance stood taken. It is submitted that the last act of cruelty with the petitioner -complainant took place just prior to filing of the complaint, i.e. in the later half of the year 2004 and the cognizance was taken on 31.10.2006, thus it cannot be said that the proceedings were time-barred as the cognizance was taken within the period of three years, which is the limitation which applied for the offences under Sections 498-A and 406 I.P.C. 5. Per contra, Mr. P.N. Mohanani, learned counsel for the respondents No. 2 to 9 submitted that there was nothing wrong in the action of the respondents in challenging the order of the learned Magistrate before the Revisional Court because the jurisdiction of the Revisional Court and the jurisdiction of this Court under Section 482 Cr.P.C. are entirely different jurisdiction and there is no bar in entertaining the revision petition even if one. challenge to the same order has failed. It has further been submitted that in the similar circumstances, the Hon'ble Supreme Court, in the case of Fatma Bibi Alnned Patel v. State of Gujarat & Anr., 2008 Cri LJ 3065 has approved filing of fresh petition when earlier petition had failed. 6. I have given my thoughtful consideration to the rival arguments advanced at the bar. 7. The contention of Mr. 6. I have given my thoughtful consideration to the rival arguments advanced at the bar. 7. The contention of Mr. P.N. Mohanani, learned counsel for,, the respondents regarding non-applicability of the principle of res judicata to the criminal case cannot be disputed, but this Court feels that in the present matter is that the action of the respondents herein in concealing the factum".0f earlier challenge to the order of the trial Court issuing process before this Court is an act of deliberate concealment of fact. This fact was necessary to be disclosed in the revision petition filed before the learned Additional Sessions Judge, which has not been done and as such, the respondents were guilty of playing fraud with the Court. 8. This Court had already considered the arguments in relation to challenge to the order issuing process and had fond that the order issuing process did not suffer from any illegality or irregularity. On the same ground, the revision petition was preferred before learned Additional Sessions judge and the learned Revisional Court was not informed about the challenge to the.order issuing process by way of filing a miscellaneous petition before this Court. In the opinion of this Court, the facts of the case of Fatma Bibi (supra) are entirely different from the facts of the present case. From a perusal of the aforesaid judgment, it is not revealed that the subsequent petition for the same case were filed by concealing the factum of dismissal of the earlier petition. In any event all the applications in the said case were filed before the High Court itself and it was not a case wherein the High Court rejected the challenge to the order issuing process and thereafter the jurisdiction of. the Sessions Court was availed. Thus, this Court is of the opinion that the respondents are guilty of concealing the material fact in the present case and the impugned order passed by the Additional Sessions Judge dated 19.6.2009 has been procured by concealing the fact that the respondents had already challenged the same order before this Court, as mentioned above. This conduct of the respondents is deprecated. 9. That apart, I have also given my thoughtful consideration to the impugned order and considered the case on merits as well. This conduct of the respondents is deprecated. 9. That apart, I have also given my thoughtful consideration to the impugned order and considered the case on merits as well. Suffice it to say that the learned Additional Sessions Judge has set aside the order taking cognizance on two grounds, i.e. (i) that there was no territorial jurisdiction with the Court at Ratangarh to try the offences because all the offences had taken place at Sikar, and (ii) that the proceedings were time-barred by virtue of Section 468 Cr.P.C. In the opinion of this Court, both these grounds are not available from the admitted facts of the case. Firstly, the petitioner complainant has specifically stated that in her complaint that the dowry articles were entrusted to respondent No. 2 Sikander Ali and respondent No. 3 Firoz Khan at Ratangarh. Thus, part of the offences, i.e. the offence under Section 406 I.P.C. took place at Ratangarh and the Court at Ratangarh very much has the jurisdiction to try the case even if the other offences have taken place outside its territorial jurisdiction. The provisions of Sections 178 (d) and 181 (1) Cr.P.C. may be referred hereunder: "Section 178. Place of inquiry or trial. ......... (d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas." Section 181. Place of trial in case of certain offences. "(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person." 10. From a perusal of these two provisions, it becomes apparent that the trial of the case for misappropriation and breach of trust can very well be conducted at a place where the property was entrusted. From a perusal of these two provisions, it becomes apparent that the trial of the case for misappropriation and breach of trust can very well be conducted at a place where the property was entrusted. In the present case, undoubtedly there is an allegation of the complainant that her "Stridhan" was entrusted to the accused at Ratangarh and thus, by virtue of the provisions of Sections 178(d) and 181(4), this Court has no hesitation in arriving at a conclusion that the learned Additional Chief Judicial Magistrate, Ratangarh has' the jurisdiction to try the case and the findings of the learned Additional Sessions Judge, Ratangarh in this regard are absolutely erroneous. 11. The second ground which has been relied upon by the learned Additional Sessions judge for quashing the order of cognizance is that the proceedings were beyond the period of limitation prescribed under Section 468 Cr.P.C. As has already been observed above, in this case the offence of cruelty which was committed on the petitioner -complainant, took place in the month of October 2004 and the complainant filed the complaint immediately thereafter. Thus, on the strength of decisions of the Hon'ble Supreme Court in Bharat Damodar and Japani Sahoo, referred to above, the proceedings in the instant matter cannot be said to be beyond the period of limitation. Secondly, the cognizance in the case was taken on 31.10.2006 when the proceeding under Sections 200 and 202 were directed to be initiated and it cannot be said that the cognizance was taken on 24.7.2008, as observed by the learned Additional Sessions Judge. The law in this regard is well-settled that the cognizance of an offence is taken when the Court applied its mind for the purpose of proceeding under Sections 200 and 202 Cr.P.C. The subsequent order dated 24.9.2008 is just an order issuing the process. Therefore, when the Additional Chief Judicial Magistrate passed an order for recording the statements of the complainant and her witnesses under Sections 200 and 202 Cr.P.C., the cognizance of the offence had already been taken and at that time the proceedings were well within the limitation.Accordingly, this Court is of the opinion that the order of the Revisional Court is patently illegal and is hereby set aside. The record of the trial Court is directed to be sent back forthwith. The record of the trial Court is directed to be sent back forthwith. The respondents are directed to appear before the learned trial Court on or before 15.12.2011 and furnish their bail bonds in terms of the bailable warrants issued against them, failing which the trial Court will be entitled to procure their presence by the warrants of arrest.Revision Allowed. *******