RAKESH GHATIWAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of instant petition under Sec. 482 Cr.P.C., petitioners have challenged the order dtd. 31/10/2003 passed by the learned Judicial Magistrate No. 7, Jodhpur whereby he has rejected their application filed u/s: 245(2) Cr.P.C.

(2.) Briefly stated the facts of the case are that the Additional District Collector (Returning Officer), Jodhpur filed a complaint against petitioners before the Judicial Magistrate No. 4, Jodhpur for the offence under Sec. 177, 191, 192, 199, 200, 468, 471, 474, 420 and 120-B IPC on the ground of enquiry made by the SDM, City, Jodhpur. Petitioner No. 1 was a candidate for Municipal Corporation Election held in the year 1999. Sec. 26(xv) of the Rajasthan Nagar Palika Act, 1959 disqualifies a person having more than two children given birth after cut off date i.e. 28/11/1995. It is alleged that on 16/11/1999, petitioner No. 1 at the time of filing nomination gave wrong information regarding his children. The learned Magistrate took cognizance against petitioners for the offence under Sec. 177, 199 and 420 r/w 120-B IPC. The same controversy came up for consideration before the Division Bench of this Court in D.B. Civil Special Appeal No. 601/2002, Rakesh Ghatiwal v. State, decided on 19/2/2003. The Division Bench on appreciation of material on record held that the material relied upon by the Enquiry Officer to the effect that a child was born to Pushpa wife of Rakesh, resident of Milkman Colony, in no way connects the same with Pushpa wife of Rakesh Ghatiwal of Milkman Colony. The relevant finding is extracted as follows :

(3.) The Division Bench judgment in Rakesh Ghatiwal's case (supra) was brought to the notice of the learned Magistrate, who refused to discharge the petitioner under Sec. 245(2) Cr.P.C. as in his opinion, the finding recorded in the civil proceedings cannot be relied upon in the criminal proceedings.