MANOJ KUMAR TIWARI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) INSTANT misc. petition under Section 482 Cr.P.C. has been filed by the complainant -petitioner against the order dated 18.01.2010 passed by Additional Sessions Judge No. 3, Jaipur City, Jaipur(hereinafter referred to as 'the Revisional Court ') in Criminal Revision No. 69/2009, whereby the Revisional Court has dismissed the revision petition filed by the petitioner and upheld the order dated 12.03.2009 passed by the Assistant Collector Cum Executive Magistrate, Jaipur City, Jaipur(hereinafter referred to as 'the Trial Court ') on Case File No. 189/2008 in proceedings under Section 107 and 116(3) Cr.P.C.

(2.) BRIEF facts of the case are that the petitioner filed a complaint to the SHO, Police Station Mahesh Nagar, Jaipur on 31.01.2008 against the Respondents No. 2 to 5 -non -applicants with the allegations that he is Medical Officer and the Respondents did beating with him and for that a report had already been lodged by him. Again the respondents called him at residence on the pretext of compromise and gave beating and threaten that in case he would demand any of his goods/articles/gold etc. and come out of the house he would be murdered. Therefore, he again lodged the report for taking action against the respondents -non -applicants, but the police after investigation submitted only a private complaint in the court of Executive Magistrate for taking action against the respondents -non -applicants under Section 107 and 116(3) Cr.P.C. The Executive Magistrate after considering the prima facie case issued notices to the respondents under Section 111 Cr.P.C. for their appearance in Court on 08.04.2008. The respondents -non -applicants did not appear despite service of notices. Therefore, vide order dated 12.11.2008, bailable warrants were ordered to be issued. Thereafter, Advocate appeared on behalf of the non -applicants on 06.03.2009 before the learned Trial Court and an application under Section 116(6) Cr.P.C. was filed by the Advocate of non -applicants to drop the proceedings. Thereafter, the case was listed on 12.03.2009 and on that day, the learned Trial Court dropped the proceedings, on the ground that proceedings are going on for last more than six months and in the meantime there was no complaint of breach of piece. Being aggrieved with the order dated 12.03.2009 passed by the learned Trial Court, the complainant -petitioner preferred a revision petition before the learned Revisional Court, but the same also came to be dismissed by the learned Revisonal Court vide order dated 18.01.2010. Feeling aggrieved by the order dated 12.03.2009 passed by the learned Trial Court and order dated 18.01.2010 passed by the learned Revisional Court, the petitioner has preferred this misc. petition under Section 482 Cr.P.C.

(3.) LEARNED counsel for the petitioner has contended that both the courts below have committed illegality and misread the provisions of Section 116 Cr.P.C. particularly, the provisions of Section 116(1) and (6) thereof. As per the Section 116(6) the proceedings stand terminated only if the enquiry under Section 116(1) Cr.P.C. is not completed within six months. As per Section 116(1) Cr.P.C. the enquiry starts only from the date of appearance of the non -petitioners and only after reading over and explaining an order under Section 111 Cr.P.C. and not prior to that. Meaning thereby, the enquiry starts only when non -petitioners appeared in person and the contents of notice under Section 111 Cr.PC. are read over and explained to them and not from the date when the complaint has been filed, nor from the date when the notices have been issued, nor from the date when the notices have been served, nor from the date when the Vakalatnama has been filed on behalf of the respondents -non -applicants. Learned counsel for the petitioner further contended that in the present case, the respondents did not appear even once before the Trial Court after service of the notices despite of the undertaking given by their Advocate who filed the Vakalatnama on their behalf in their absence. There was no question of reading and explaining the contents of notice under Section 111 Cr.P.C., nor giving reply thereof by the respondents. As such there was no question of beginning or starting of the inquiry stipulated under Section 116(1) of the Cr.P.C. Once, the enquiry was not initiated nor begin then there is no question of completion of the same within six months. The orders passed by both the Courts below suffer from basic and fundamental illegality in law and it is a case of abuse of the process of law and court by misinterpreting the provisons of Section 116 Cr.P.C. In support of his submissions, learned counsel for the petitioner placed reliance upon the decision rendered by the Kerala High Court in the Case of Mathewkutty and Another Vs. State of Kerala and Another, 1995 Cri.L.J. 3293. Learned counsel for the petitioner prayed that the orders passed by both the Courts below may be quashed and set aside and the Court of Assistant Collector Cum Executive Magistrte, Jaipur City, Jaipur to proceed with the case and decide the proceedings on merits.