ONKAR LAL SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Notice of this Misc. petition has been given to the Public Prosecutor and I have heard him. The petitioner has challenged the order of the learned Magistrate committing him to the court of Special Judge Dacoity Affected Area, Karauli. Commitment of the case is challenged on the ground that the offence in this case is not connected with the offence of dacoity and as such the learned Special Judge, Dacoity Affected Area has no jurisdiction in the matter.

(2.) A perusal of the F.I.R. No. 717/80, Police Station Hindaun City will show that accused petitioner Onkar, is the adopted son of informant Shri Jagannath Prasad. As given out by the learned counsel for the petitioner after the petitioner was adopted, a natural son was born and it gave rise to many disputes in respect of the property. As per information of Shri Jagannath Prasad on 22.11.1988 he was sitting in the shop at about 8 a.m. in the morning and his natural born son Ghanshyam and others were also present in the shop. The petitioner came there and said; "old man give me Rs. 5000.00". He asked the accused-petitioner as to on what count he demands the amount. It is alleged that the petitioner pushed him and caught hold by his neck and took out a sum of Rs. 3950.00. The accused-petitioner also took away a table fan alongwith the above said cash amount. When Ghanshyam son of Jagannath Prasad is said to have stopped the accused-petitioner, the accused petitioner took out a knife and without inflicting any injury with the knife made his escape good with the aforesaid cash and table fan. A case u/s 392 I.P.C. was registered and later on an offence under Sec. 398 I.P.C. was also added. The charge-sheet was filed and the learned Magistrate under the impugned order committed the accused-petitioner to the learned Special Judge Dacoity Affected Area, Karauli.

(3.) A perusal of the above facts will disclose that the offence which is alleged to have been committed is not even remotely connected with the offence of dacoity. It may be a case of robbery alongwith a case of theft. 'Dacoity' is defined in section 391 I.P.C. and it says that, "when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing attempting or aiding, is said to commit 'dacoity'. Though offence under Sec. 392 l.P.C. is a Scheduled offence in Schedule appended to the Rajasthan Dacoity Affected Areas Act, 1986 came into force with effect from 5.9.1985 but for that matter, it cannot be said that the Special Judge under the Act will have the jurisdiction to try the case. In the case of Jabbar Vs. State of Rajasthan, 1987 Cr. LR (Raj) Page 620 this Court has examined the question more so, section 2 (c) of that Act and said that the word "including" mentioned in section 2 (c) of the Act is erroneous phraseology used and the offence included in the schedule will only be "Scheduled Offence" only when such offence forms part of, or arises out of, or, is, in any way, connected with the commission of dacoity and it is only those cases, then Sec. 5 of the Act would be applicable. The Court further said that unless it is so, the cases will be triable by the ordinary courts. Consequently, I am of the opinion that Special Judge has no jurisdiction in the matter and the learned Magistrate could not have committed the accused to his court.