Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 683 (RAJ)

Kamal Chand Gupta v. State of Rajasthan

2012-03-19

MAHESH CHANDRA SHARMA

body2012
Hon'ble SHARMA, J.—This criminal misc. Petition has been filed by the petitioner under sections 482 and 483 Cr.P.C. for quashing of the complaint filed by the complainant non-petitioner under sections 182 and 211 IPC and all subsequent orders in complaint No. 217 of 2008 and order dated 20.3.2008 passed by Shri Ganeshi Lal Gupta, Additional CJM and Special Court Communal Riots Kota Raj. 2. Brief facts of this criminal misc. petition are that the petitioner who is a practicing advocate, lodged report against some persons on 24.1.2007 at 9.00 p.m. in connection with the occurrence which took place on the same day at 10 a.m. at Police Station Nayapura, Kota for the offence under sections 452, 323, 341 and 504 IPC. The accused persons are related to the complainant non-petitioner No.2. Afterwards, the matter was compromised and on 29.1.2007 the petitioner submitted an application before the SHO Police Station Nayapura, Kota with this fact that he is not interested in prosecuting the case. On 27.2.2007, the police in these circumstances submitted final report. On 2.3.2007 the notice was issued and final report was accepted, when the petitioner requested the court that he is not interested in prosecuting the case, vide order dated 30.7.2007. No application was moved for prosecuting the case under sections 182 and 211 IPC by the SHO of the concerned police station against the petitioner along with the final report which was accepted on 30.7.2007. On 20.3.2008 a complaint was filed by the complainant non-petitioner for prosecution of the petitioner under sections 182 and 211 IPC and on the same day the trial court took cognizance for procuring the presence of the petitioner. The petitioner came to know about the issuance of the notice on or about 18.5.2009 and then on 19.5.2009 an application was filed for procuring the presence. On 9-10.6.2009 the copy of the impugned order was received by the petitioner. In these circumstances the petitioner filed the present criminal misc. petition for quashing of the complaint and all subse-quent proceedings taken on the complaint filed by the non-petitioner No.2. 3. Mr. Gupta, learned counsel for the petitioner has argued that the complaint filed against the petitioner by the non-petitioner No.2 is an abuse of process of law. The learned counsel submitted that the matter was lodged by the petitioner and the accused persons were his relative. 3. Mr. Gupta, learned counsel for the petitioner has argued that the complaint filed against the petitioner by the non-petitioner No.2 is an abuse of process of law. The learned counsel submitted that the matter was lodged by the petitioner and the accused persons were his relative. Afterwards both the parties compromised the matter and then on 29.1.2007 the petitioner moved an application to the SHO Police Station Gumanpura, Kota that he is not interested in prosecuting the case. The learned counsel further submitted that if the police was of the view that the petitioner has committed any offence under sections 182 and 211 IPC then this fact would have been mentioned in the final report itself and the investigating agency would have requested the court to prosecute the petitioner under the provisions of law. The learned counsel has stated that from a perusal of the final report it is clear that no such prayer was made. The trial court accepted the final report and no such order was passed for taking any cognizance under sections 182 and 211 IPC against the petitioner. When the case came to an end and the final report was submitted without any request for taking action under sections 182 and 211 IPC. Against the petitioner there was no occasion for the complainant non-petitioner to submit the complaint after a lapse of near about one year against the petitioner. The non-petitioner acted malafidely due to some other reason. He has filed the complaint against the petitioner to harass, harm and to defame him. The learned counsel has further contended that there was no occasion for the trial court to take complaint and pass any such order on this complaint. The complaint was detailed one and same was barred by limitation in view of section 468 Cr.P.C. under sub-clause (b) of sub-section (1) the limit is one year, if the offence is punishable with imprisonment for a term not exceeding one year and under Section 182 IPC the maximum sentence is 6 months or with fine which may extend to Rs. 1,000/-. Admittedly no notice was given to the petitioner and in the complaint no explanation has been given for filing the complaint. The trial court has not properly considered the provisions of section 211 IPC. 1,000/-. Admittedly no notice was given to the petitioner and in the complaint no explanation has been given for filing the complaint. The trial court has not properly considered the provisions of section 211 IPC. A person against whom final report has been submitted has not stated a word that a complaint was lodged with intent to cause any injury to him and the charge levelled against him is less. The FIR lodged by the petitioner and the accused persons was related to him. Afterwards relatives compromised the matter and in view of this compromise, the statement was given and application was also moved. The learned counsel placed reliance on K. Ramakrishna and others vs. State of Bihar and another reported in 2000(8) SCC 547 , Ramchandra vs. State of M.P. 2001(3) Crimes 166, Adalat Prasad vs. Roop Lal Jindar and others 2004(7) SCC 338 , Zandu Pharmacetical Works Ltrd. vs. Mohnd. Sharaful Haque and another 2005(1) SCC 122 = RLW 2005(1) SC 135. 4. Mr. Peeyush Kumar, PP for the State controverted the arguments raised by the learned counsel for the petitioner and stated that the SHO filed the complaint before the court concerned and the court issued notice for presence of the petitioner and the petitioner instead of facing trial in the complaint filed the present misc. petition. The misc. petition in these circumstances deserves to be rejected. 5. I have heard Mr. A.K. Gupta, counsel for the petitioner and Mr. Peeyush Kumar, Public Prosecutor for the State. 6. The notice of this petition was sent to the non-petitioner No.2, but nobody has put in appearance on his behalf. It is an admitted fact that the petitioner lodged a complaint on 24.1.2007 for the offences under sections 452, 341, 323 IPC against the father in- law and mother-in law of his son. It is also an admitted fact that on 29.1.2007 the petitioner filed application stating that the matter has been compromised and now he is not interested in pressing the complaint. It is also an admitted fact that on 29.1.2007 the petitioner filed application stating that the matter has been compromised and now he is not interested in pressing the complaint. The application dated 29.1.2007 reads as under : ^^fuosnu gS fd esjs }kjk fn- 24-1-07 dks ,d izdj.k /kkjk 452] 341] 323 vkbZihlh dk ntZ djk;k x;k gS D;ksafd ekeyk ikfjokfjd ,oa fudVre fj'rsnkjh dk gSA ml oä esa xqLls esa Fkk vkSj fjiksVZ djk nh FkhA vc gekjs fj'rsnkjksa }kjk ge nksuksa i{kksa dks cSBk dj l>kfj;k fd;k esjs vkSj lqHkk"k vxzoky ds chp tks xyrQgeh iSnk gksbZ Fkh og vc vkil esa ckr djus ls nwj gks pqdh gS os yksx eq>s ekjihV djus ugha vk;s FksA xyr Qgeh esa ;g ?kVuk ?kV xbZ FkhA izdj.ke sa vc dksbZ vfxze dk;Zokgh ugha pkgrk gwWA l/kU;oknA g- ¼dey pUn xqIrk½ ,MoksdsV 29-1-07 u;kiqjk dksVk** 7. The SHO on the basis of the application dated 29.1.2007 filed final report before the court concerned and the same was accepted by the court on 30.7.2007. The order dated 30.7.2007 reads as under : ^^30-7-07 ,ihih mifLFkrA ifj- mifLFkrA Qfj;knh dksbZ dk;Zokgh ugha pkgrkA FIR dk voyksdu djsaA ,Q vkj Lohdkj dh tkrh gS dsl Mk;jh ------------- vifBr ---- g- vij eq[; U;kf;d eftLVªsV fo'ks"k U;k;ky; ¼lkEiznkf;d naxs½ dksVk ¼jktLFkku½ Thus it is clear that the FR was accepted as the complainant does not want to continue the proceedings. On the date when the FR was accepted the concenred court has not taken any proceedings against the petitioner under sections 182 and 211 IPC. It is also an admitted fact that the SHO Nayapura Kota filed complaint before the concerned court on 20.3.2008 against the petitioner i.e. after a period of more than one year and two months since the filing of the complaint by the petitioner. It is also an admitted fact that the SHO Nayapura Kota filed complaint before the concerned court on 20.3.2008 against the petitioner i.e. after a period of more than one year and two months since the filing of the complaint by the petitioner. The court's order dated 20.3.2008 passed on the complaint of the SHO, reads as under : “20.3.2008 vkt ;g ifjokn vfHk;qä deypan xqIrk ds fo:) /kkjk 182] 211 Hkk-na-la- lh-vkbZ ¼,l-,p-vks- u;kiqjk½ }kjk izLrqr fd;k x;kA mUgksaus izdj.k dks foyfEcr izLrqr djus ds lEcU/k esa viuk 'kiFk i= is'k fd;k gSA og izdj.k esa izR;sd is'kh ij mifLFkr ugha jg tkus ds lEcU/k esa gkftjh ekQh fd;s tkus o izdj.k dh iSjoh mi- ,ihih djkus dk fuosnu fd;k gSA izdj.k ds rF;ksa dks n`f"Vxr j[krs gq, vfHk;qä deypan xqIrk ds fo:) vijk/k /kkjk 182] 211 Hkk-na-la- foyEc dk lE; djrs gq, izlaKku fy;k tkrk gS rk gkftjh vfxze gkftjh rd djus dh vkKk nh tkrh gS izdj.k ntZ jftLVj gks o ,oa ,p vks dh gkftjh ekQh vU;k vfxze vkns'k rd t;sZ ,ihih dh tkrh gSA vfHk;qä dks t;sZ lEeu ryc fd;k tkosA i=koyh fnukad 13-10-08 dks is'k gksA g- vij eq[; U;kf;d eftLVªsV fo'ks"k U;k;ky; ¼lkEiznkf;d naxs½ dksVk ¼jktLFkku½ 8. Admittedly the petitioner is practicing advocate and of more than 62 years of age and he has filed the application on 29.1.2007 before the SHO Kota for not pursuing his report filed on account of compromise. When the matter has already been compromised and the court has also accepted the FR filed by the SHO in the earlier complaint filed by the petitioner and no action was taken by the court concerned. Thus, it is clear that there is no question of filing any false complaint by the petitioner before the SHO Kota on 24.1.2007 and thereafter when the matter was compromised he has already filed application before the SHO Kota for withdrawing the complaint and his application dated 29.1.2007 was also filed with the FR submitted by the police before the concerned court and while accepting the FR it was observed by the court concerned that the complainant does not want to continue with the complaint and hence the FR is accepted. Thus it is clear that the SHO Nayapura Kota with ulterior motive or with any other reason filed complaint against the petitioner, who is an advocate by profession for harassing him. Thus it is clear that the SHO Nayapura Kota with ulterior motive or with any other reason filed complaint against the petitioner, who is an advocate by profession for harassing him. Without commenting on the complaint filed by the SHO against the practicing advocate, for meeting ends of justice the complaint and the proceedings taken by the court concerned on the complaint filed by the SHO Nayapura Kota, are quashed. The notice of this petition was also sent to the non-petitioner No.2 complainant but he has not put his appearance through any advocate and he is also not present when the case was argued before this court. In the interest of justice also I am of the view that the complaint and the proceedings taken on the complaint by the SHO by the court concerned on 20.3.2008 deserve to be quashed and set aside. The petitioner, who is practicing lawyer now need not to appear before the court concerned. 9. For the reasons mentioned above, the criminal case No. 217 of 2008 pending in the court of Addl. Chief Judicial Magistrate, Special Court Communal Riots Kota (Raj.) against the petitioner Kamal Chand Gupta son of late Tejmal Gupta filed by the SHO Nayapura Kota is quashed and all subsequent orders passed by the ACJM on the criminal case No. 217/2008 are also quashed and set aside. The petitioner Kamal Chand Gupta, need not to appear before the court concerned.