MAHESH JATAV Vs. STATE OF MP

JUDGEMENT

(1.) THIS petition is filed by the complainant; Mahesh Jatav for impugning the order dated 28th November, 2007 'passed by Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Gwalior, whereby the learned judge before whom the case was committed after filing of the charge-sheet against respondents No. 2 to 6 for the offence punishable under Sections 302, 395, 396,376 of ipc read with Section 11/13 of The Madhya pradesh Dakaiti Aur Vyapharan Prabhavit kshetra Adhiniyam, 1981 (hereinafter referred to as the Act of 1981) and also 3 (l) (xii)and 3 (2) (v) of Scheduled Castes and scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act of 1989), has framed charge against all the respondents 2 to 6 for the offence punishable under Section 302/149 along with offence punishable under Section 3 (2) (v) of the Act of 1989. In addition to that against respondent No. 2 Ravi @ thakurdas charge for the offence punishable under Section 376 (1)of IPC read with Section 3 (2) (v) of the Act, 1989. Charge under Section 395 and 396 of ipc read with Section 11/13 of the Act of 1981 has not been framed on the ground that for trial of these offences, a separate special Court has been established and the learned Judge was not empowered to try these offences. Impugning this order, vide this petition, it has been requested that the charge under Sections 395 and 396 of IPC read with Section 11/13 of the Act 1981 also ought to have been framed.

(2.) UNDISPUTEDLY, with regard to an incident happened in the night of 1st June, 2007, FIR Crime No. 194/07 was lodged by the complainant Mahesh Jatav at Police station Jhansi Road, Gwalior, against unknown persons to the effect that his Bhabhi (elder brother's wife) Smt. Gayabai and his niece Mona, who were living in their house separately and in the night only these two ladies were there in the house, have been found dead in the morning. Their murder has been committed by strangulation. On this report, the aforesaid FIR was initially registered for the offence punishable under section 302 of IPC. It is also not disputed that during investigation vide postmortem report of deceased Mona, it is also opined by the doctor that evidence of sexual intercourse is evident with violence mark and her death was caused by asphyxia due to strangulation within 12 to 24 hours since post-mortem. It is also admitted that during investigation as per the report dated 20th August, 2007, given by Finger Prints bureau, Bhopal, it is opined that finger prints found at the place of incident are tallying with the finger prints of the respondent no. 2 Ravi @ Thakurdas along with the other evidence. Some of the articles have been alleged to be recovered from the possession of the respondents. On this ground, the charge-sheet has been filed for the aforementioned offences in the Court or concerning Magistrate, who in turn committed the case in the Court of the learned Judge. Vide impugned order, the learned Judge has framed the aforesaid charges and on the ground that for the offence punishable under Sections 395 and 396 of IPC read with 11/13 of the Act of 1981, a separate Special court has been established and as such he has no jurisdiction to try the offences, he did not consider anything about these offences.

(3.) THE impugned order has been assailed by Shri R. K. Sharma, advocate appearing for the petitioner, on the ground that as per the allegation, the offence under Sections 395 and 396 of IPC read with 11/13 of the act of 1981 also made out prima facie, hence, the charge ought to have been framed against the respondents No. 2 to 3. If the learned Judge has no jurisdiction to try the case, in that case, a direction may be given to send the case for filing the charge-sheet to the appropriate Court having jurisdiction.