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2014 DIGILAW 337 (HP)

Kanwar Singh v. State of Himachal Pradesh

2014-04-03

RAJIV SHARMA

body2014
JUDGMENT Rajiv Sharma, Judge. This petition is directed against the judgment dated 17.8.2013 passed by learned Additional Sessions Judge-I, Shimla, Camp at Rohru in Criminal Revision Petition No.4-R/10 of 2012. 2. “Key facts” necessary for the adjudication of this petition are that one Balbir Dhawan informed the police about the commission of offence. Consequently, FIR was recorded under sections 447, 379, 414 and 427 of the Indian Penal Code at Police Station, Rohru. The matter was investigated; re-investigated and final report under section 173 of the Code of Criminal Procedure (hereinafter referred to as the “Code” for brevity sake) was filed on 5.7.2010 before the court under section 447 of the Indian Penal Code. Learned Judicial Magistrate 1st Class, Court No.2, Rohru on 23.7.2010 issued summoning order against the petitioner. It appears from the record that with effect from 15.9.2010 to 1.6.2012 no effective proceedings took place in the trial. However, on 2.6.2012, 1st Judicial Magistrate Class, Court No.2, Rohru discharged the accused for offence under section 447 of the Indian Penal Code. Respondent filed a revision against the order dated 2.6.2012 before the Additional Sessions Judge-1, Shimla, Camp at Rohru bearing Criminal Revision Petition No.4-R/10 of 2012. He allowed the same on 17.8.2013. Hence, the present petition under section 482 of the Code of Criminal Procedure for setting aside judgment dated 17.8.2013. 3. Mr. Peeyush Verma has supported the order of Judicial Magistrate 1st Class, Rohru. According to him, petitioner has rightly been discharged under section 258 of the Code of Criminal Procedure. 4. Mr. V.S. Attri, learned Deputy Advocate General has supported the judgment passed by the Additional Sessions Judge-1, Shimla, Camp at Rohru. 5. I have heard the learned counsel for the parties and have gone through the pleadings carefully. 6. What emerges from the facts enumerated hereinabove is that FIR was registered at Police Station, Rohru. The matter was investigated, re -investigated and the final report was filed. Summoning orders were issued by the Judicial Magistrate 1st Class on 23.7.2010. Once the order has been passed on 23.7.2010 for summoning the accused, he could not be discharged under sections 167 (5) and 258 of the Code of Criminal Procedure. Judicial Magistrate 1st Class has erred in law by discharging the accused by exercising powers under section 258 of the Code. 7. Once the order has been passed on 23.7.2010 for summoning the accused, he could not be discharged under sections 167 (5) and 258 of the Code of Criminal Procedure. Judicial Magistrate 1st Class has erred in law by discharging the accused by exercising powers under section 258 of the Code. 7. The manner in which summons cases are to be tried by the Magistrate is provided under Chapter-XX of the Code. Section 251 provides that when in a summons-case, the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused are to be stated to him and he is to be asked whether he pleads guilty or has any defence to make , but it is not necessary to frame a formal charge. If the accused pleads guilty, then the Magistrate has to record the plea as nearly as possible in the words used by the accused and may, in his discretion convict him under section 252. The conviction on plea of guilty in absence of accused in petty cases is provided under section 253. Section 254 provides that if the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. The court can also issue summons to any witness directing him to attend or to produce any document or other thing. Section 255 provides that if the Magistrate, upon taking the evidence referred to in section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he should record an order of acquittal and where the Magistrate does not proceed in accordance with the provisions of section 325 or section 360, he should, if he finds the accused guilty, pass sentence upon him according to law. 8. In the case in hand, the trial court has scuttled the entire step by step procedure by discharging the accused, as provided under Chapter-XX of the Code of Criminal Procedure, 1973. 9. 8. In the case in hand, the trial court has scuttled the entire step by step procedure by discharging the accused, as provided under Chapter-XX of the Code of Criminal Procedure, 1973. 9. It is settled law that after the issuance of summoning orders by the Magistrate, accused could not be discharged or acquitted midway without permitting the parties to lead any evidence. In summoning cases, there cannot be question of discharge as there is no such express provision. The offence committed by the petitioner under section 447 of the Indian Penal Code is a continuous offence. Section 258 of the Code, as noticed hereinabove, is not attracted in the case in hand. 10. Their Lordships of the Hon’ble Supreme Court in Gokak Patel Volkart Ltd . vs. Dundayya Gurushiddaiah Hiremath and others, (1991) 2 SCC 141 have explained the words “continuing offence” and “continuous offence”. Their Lordships have held that trespass is a continuous offence within the meaning of section 472 of the Code of Criminal Procedure. Their Lordships have held as under: “7. What then is a continuing offence? According to Black's Law Dictionary [5th edn. (Special Deluxe)], 'continuing' means "enduring; not terminated by a single act or fact; subsisting for a definite period or intended to cover or apply to successive similar obligations or occurrences". Continuing offence means "type of crime which is committed over a span of time." As to period of statute of limitation in a continuing offence, the last act of the offence controls for commencement of the period. "A continuing offence, such that only the last act thereof within the period of the statute of limitations need be alleged in the indictment or information, is one which may consist of separate acts or a course of conduct but which arises from that singleness of thought, purpose or action which may be deemed a single impulse." So also a 'Continuous Crime' means "one consisting of a continuous series of acts, which endures after the period of consummation, as, the offence of carrying concealed weapons. In the case of instantaneous crimes, the statute of limitation begins to run with the consummation, while in the case of continuous crimes it only begins with the cessation of the criminal conduct or act". 14. Section 441 of the Indian Penal Code defines criminal trespass as follows: "441. Criminal trespass. In the case of instantaneous crimes, the statute of limitation begins to run with the consummation, while in the case of continuous crimes it only begins with the cessation of the criminal conduct or act". 14. Section 441 of the Indian Penal Code defines criminal trespass as follows: "441. Criminal trespass. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, Or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, Is said to commit 'criminal trespass'." House trespass is punishable under S. 448 of the Indian Penal Code. It is significant that when entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. the offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped. the authors of the Code had the following words to say: "We have given the name of trespass to every usurpation, however slight, of dominion over property. We do not propose to make trespass, as such, an offence, except when it is committed in order to the commission of some offence injurious to some person interested in the property on which the trespass is committed, or for the purpose of causing annoyance to such a person. Even then we propose to visit it with a light punishment, unless it be attended with aggravating circumstances. These aggravating circumstances are of two sorts. Criminal trespass may be aggravated by the way in which it is committed. It may also be aggravated by the end for which it is committed." 11. Their Lordships of the Hon’ble Supreme Court in Adalat Prasad vs. Rooplal Jindal and others, AIR 2004 SC 4674 have held as under: “14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code on a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. 15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code.” 12. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code.” 12. Accordingly, in view of analysis and discussion made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of.