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2013 DIGILAW 931 (RAJ)

Mohd. Rafiq v. State of Rajasthan

2013-05-08

VIJAY BISHNOI

body2013
JUDGMENT 1. - This criminal miscellaneous petition under section 482 Cr.P.C has been preferred by the petitioner against the order dated 16.03.2010 passed by the learned Additional Sessions Judge, Abu Road, District Sirohi (for short 'the revisional court' hereinafter) in Cr. Revision Petition No. 5/2009, whereby the learned revisional court has dismissed the revision petition and affirmed the order dated 04.09.2008 passed by the learned Judicial Magistrate, First Class, Abru Road, District Sirohi (for short 'the trial court' hereinafter) in Cr. Regular Case No. 289/2005, whereby the learned trial court had dismissed the application filed by the petitioner under sections 173 and 242 Cr.P.C and took cognizance against the petitioner under sections 279 and 337 IPC. 2. Brief facts, necessary for disposal of this petition, are that on 14.12.2004, one Ganpat Singh- Driver of Roadways Bus No. RJ-24-P-1230 lodged a report at Police Station, Abu road, alleging therein that today at 06:15 PM, when he was going from Abu Road to Mount Abu and reached near Baghnala, one jeep bearing No. RJ24-T-1247 came from Mount Abu and collided with the wall and fell in the valley. It was alleged that the jeep was being driven in a fast speed and due to this, the accident occurred. On receiving this report, a case was registered against the petitioner for the offences punishable under sections 297 and 337 IPC. Police started investigation and after completion of investigation, challan was filed against the petitioner for the offences punishable under sections 279 and 337 IPC. On 11.03.2005, the petitioner moved an application under section 173 and 242 Cr.P.C and prayed for reinvestigation of the matter and for producing the statements of passengers, sitting in the jeep, on record. The petitioner had further prayed that till then, the cognizance for the offences for which charge-sheet has been filed, may not be taken against him. The matter was kept pending in the trial court for consideration of the aforesaid application moved by the petitioner and ultimately, the said application was dismissed by the learned trial court by order dated 04.09.2008 and cognizance for the offences punishable under sections 279 and 337 IPC was taken against the petitioner. The matter was kept pending in the trial court for consideration of the aforesaid application moved by the petitioner and ultimately, the said application was dismissed by the learned trial court by order dated 04.09.2008 and cognizance for the offences punishable under sections 279 and 337 IPC was taken against the petitioner. The petitioner had challenged the said order before the learned revisional court and contended that the learned trial court took the cognizance against the petitioner after the expiry of the period of limitation as provided under section 468 Cr.P.C and, therefore, the order of taking cognizance is absolutely illegal and is liable to be set aside. The revisional court vide order dated 16.03.2010, has dismissed the revision petition. Hence, this petition. 3. It is contended by the learned counsel for the petitioner that the learned revisional court has wrongly rejected the revision petition preferred by the petitioner, while observing that the delay in taking cognizance had been caused on account of pendency of the application preferred by the petitioner under sections 173 and 242 Cr.P.C . It is contended that the delay had not been caused on the part of the petitioner before the trial court and the petitioner had moved the said application as per the statutory rights available to him and, therefore, the revisional court has wrongly dismissed the revision petition preferred by the petitioner. 4. The learned counsel for the petitioner has placed reliance on the decisions of this Court in Dhanroop Chand Mathur (Dr.) v. State of Rajasthan, reported in RLW 2004 (4) Raj 2725 ; Kamru & Anr. v. State of Rajasthan & Anr., reported in RLW 2009 (2) Raj 1742 ; and Amit Dave & Ors. v. State of Rajasthan & Anr., reported in 2007(1) CJ(Raj.)Cr. 160. 5. Learned Public Prosecutor has supported the order passed by the learned revisional court and has contended that the trial court had taken time in taking cognizance on account of pendency of the application preferred by the petitioner under sections 173 and 242 Cr.P.C , wherein the petitioner had prayed for reinvestigation and production of the statements of the jeep passengers recorded by the police and also prayed for not taking cognizance against him till the decision of the said application. It has also been contended by the learned Public Prosecutor that in the circumstances of the case, it cannot be said that the learned trial court took cognizance after the expiry of the period of limitation and as such, the learned revisional court has rightly rejected the revision petition preferred by the petitioner. 6. This Court has considered the rival submissions made on behalf of the parties and perused the record. 7. From perusal of the record, it is clear that on the day, when the police filed charge-sheet against the petitioner, an application was moved on behalf of the petitioner under sections 173 and 242 Cr.P.C , while praying for reinvestigation and production of the statements of the passengers of the jeep and for seeking report from the police officer on completion of investigation. The said application remained pending before the trial court up to 04.09.2008 as the arguments on the said application had not been concluded. From the order sheet of the trial court, it is clear that on several occasions, the petitioner was not present and an application for his absence was moved by his counsel and the arguments on the said application could not be heard as the learned APP before the trial court sought time for filing the reply to the said application but did not file any reply till the said application was decided. 8. In the facts and circumstances of the case when the application moved on behalf of the petitioner was pending for quite a long time, wherein the petitioner himself requested the trial court for not taking cognizance against him till the decision of the said application, it cannot be said that the delay in taking cognizance against the petitioner was caused on account of inaction on the part of the prosecution and the learned trial court took the cognizance against the petitioner after the expiry of the period of limitation. The learned trial court had taken the cognizance on the very same day when the application preferred by the petitioner under section 173 and 242 Cr.P.C was rejected. 9. The judgments cited by the learned counsel for the petitioner are of little help to the petitioner because in those cases, the delay was caused by the prosecution and the court had taken the cognizance after the period of limitation. 9. The judgments cited by the learned counsel for the petitioner are of little help to the petitioner because in those cases, the delay was caused by the prosecution and the court had taken the cognizance after the period of limitation. However, in the present case, the delay in taking cognizance was not caused by the prosecution but it was caused on account of pendency of the application preferred by the petitioner with a specific prayer for not taking cognizance till the decision of the application. In such circumstances, this Court does not find any illegality in the order of taking cognizance against the petitioner for the offences punishable under sections 279 and 337 IPC; and also does not find any infirmity in the order passed by the learned revisional court.Consequently, this Cr.Misc. Petition fails and is hereby dismissed.Petition dismissed. *******