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2020 DIGILAW 583 (RAJ)

Vimla Devi Soni v. State of Rajasthan

2020-07-27

NARENDRA SINGH DHADDHA

body2020
JUDGMENT Narendra Singh Dhaddha, J. - Petitioner has filed this revision petition challenging the judgment and order dated 05.03.2019 passed by Additional Sessions Judge No.6, Jaipur Metropolitan, Jaipur in which appeal filed by the petitioner was partly allowed and simple imprisonment of two years and fine of Rs.10,000/- awarded by the Additional Chief Metropolitan Magistrate No.1 (Special Court) Jaipur Development Authority, Jaipur was converted by granting benefit of probation and as a cost of prosecution Rs.20,000/-. 2. Brief facts of the case are that the respondent No.2- complainant had filed a complaint against the petitioner and Sh. Sanjay Srivastava on 28.06.2008 before the ACCM No.1, JDA, Jaipur under Section 72(1)(3) and sub-section 14 and 31 read with section 75(1) of Jaipur Development Authority Act, 1982 in which respondent contended that the petitioner having Plot No.90 situated at Vishveshwariya Extension, Triveni Nagar, Jaipur and she encroached the road of 7 ft. Learned Trial court took the cognizance on the very same day and thereafter, the trial court took statement under Section 200 Cr.P.C. and again took cognizance against the petitioner on 02.09.2016. After appearance of the petitioner which are evidence was taken and charges were framed under Section 72 of the JDA Act. 3. Respondent produced the witnesses as PW-1 to PW-9 and after that statement under Section 313 Cr.P.C. was taken of the petitioner. 4. Learned trial court convicted the petitioner for the offence under Section 72 of JDA Act dated 18.09.2017. Petitioner filed criminal appeal before the Learned Appellate Court. Learned Appellate Court affirmed the conviction order passed by the Learned Trial Court and gave the benefit of probation under Section 4 and 5 of Probation of Offenders Act. 5. Learned counsel for the petitioner submits that the impugned judgments dated 18.09.2017 and 05.03.2019 passed by learned courts below is wholly illegal and contrary to law. Learned Trial Court took the cognizance twice a time i.e. on 26.08.2008 and 02.09.2016. Learned courts below did not consider the aspect of the petitioner that taking of cognizance twice made the whole proceedings ab initio void because cognizance could not be taken twice a time. Learned courts below in the order held that it was mere irregularity it could not be said to be illegality. Learned courts below did not consider the aspect of the petitioner that taking of cognizance twice made the whole proceedings ab initio void because cognizance could not be taken twice a time. Learned courts below in the order held that it was mere irregularity it could not be said to be illegality. On this count, learned counsel for the petitioner submits that taking of cognizance twice is not permissible according to law so, entire proceedings amounts to illegality so, the proceedings be quashed. 6. Learned counsel for the petitioner also submits that learned trial court had taken the cognizance under Section 72 of the JDA Act and a complaint could be filed by the JDA or authorised person by the JDA. Respondent No.2 had not been authorised by the JDA to file the complaint. Learned courts below failed to appreciate the same. So, the complaint filed by respondent No.2 is not according to law so, entire proceedings on this count be quashed. 7. Learned counsel for the petitioner also submits that construction of petitioner was completed in the year 2002. It is admitted position that the complaint was filed in the year 2008 after the lapse of 6 years. The complaint was barred by limitation as per Section 468 of Cr.P.C. He also submits that no application was filed for condonation of delay. Learned counsel for the petitioner submits that when complaint was filed minimum sentence was one month and after amendment the minimum sentence was amended upto one year that amendment took place in 2010, but complaint was filed in the year 2008. Learned trial court did not appreciate the same and awarded the conviction of two years without any basis. 8. Learned counsel for the petitioner also submits that complainant/respondent No.2 is also himself a wrongdoer. He had Patta of measuring 186.11 sq. yard but he has possession of the land measuring 212.50 sq. yard, so, he had encroached road and he had not come with clean hands, so, entire proceedings may be quashed. 9. Learned counsel for the respondents as well as learned Public Prosecutor submit that there is no illegality in the order of the courts below. 10. Learned counsel for the respondents submits that trial court had taken cognizance twice but this act had not prejudiced the petitioner because the petitioner failed to prove any prejudice was caused to her. 9. Learned counsel for the respondents as well as learned Public Prosecutor submit that there is no illegality in the order of the courts below. 10. Learned counsel for the respondents submits that trial court had taken cognizance twice but this act had not prejudiced the petitioner because the petitioner failed to prove any prejudice was caused to her. The Trial Court as well as the Appellate Court in its order clearly stated that it was not illegality, it is only irregularity which is curable at any time. 11. Learned counsel for the respondents submits that the Trial Court as well as the Appellate Court in its order clearly stated that encroachment is continuing offence so, the contention raised by the petitioner for limitation is not applicable. Learned counsel respondents also submits that according to the proviso of the Section 75 of JDA Act which enables private person to file a complaint, so, the complaint filed by respondent No.2 is purely legal, so, the petition filed by the petitioner is liable to be dismissed. 12. I have given thoughtful consideration to submissions advanced by both the parties, perused the impugned order and the material available on record. 13. It is admitted position that the trial court had taken cognizance twice a time i.e. on 26.08.2008 and 02.09.2016 but Trial Court as well as Appellate Court in their order clearly stated that taking of cognizance twice had not prejudiced to the petitioner. It is also admitted position that petitioner had encroached the road by 7 ft. and taking of cognizance twice mere irregularity on this count proceedings cannot be quashed. 14. Learned Trial Court as well as Appellate Court clearly stated that petitioner had encroached the road and the encroachment is continuing offence, so, question of limitation is not applicable. Arguments advanced by learned counsel for the petitioner that petition is time barred wholly misconceived. Learned Trial Court as well as Appellate Court in its order stated that proviso of Section 75 of JDA Act provides that a private person can file a complaint, so, complaint filed by the respondent No.2 cannot be said that he had no authority to file the said complaint. Petitioner during the course of trial failed to prove that respondent No.2 had made encroachment, so, the petition filed by the petitioner is devoid of merit and liable to be rejected. 15. Petitioner during the course of trial failed to prove that respondent No.2 had made encroachment, so, the petition filed by the petitioner is devoid of merit and liable to be rejected. 15. Therefore, the revision petition is dismissed. All the pending applications also stand dismissed.