PREM SURANA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an application under Section 482 Cr.PC by one of the several accused against whom cognizance have been taken by the learned Judicial Magistrate No. 11, Jaipur City, Jaipur by his order dated 9th July, 1986. The cognizance against the petitioner has been taken for offences under Sections 147, 384, 427, 347, 140 and 120 IPC.

(2.) THE petitioner in this petition has stated that he is an Advocate practicing in the city of Jaipur and he owns land measuring 27' X 40' situated at Sansar Chandra Road near Government Hostel, Jaipur where the complainant Sita Ram was his tenant. His case is that he obtained a decree of ejectment against Sita Ram on 17th July, 1985 which was sought to be executed on 18th October, 1985 but there was resistance on the part of Sita Ram and on the report of Bailliff, the Court directed for providing police force and the decree was executed on 3rd November, 1985. It is mentioned in the petition that on this date, the judgment - debtor in the presence of his Advocate viz., Manohar Singh and Banwari Lal voluntarily handed over the possession and passed a receipt that the goods belonging to him, have been taken in possession by him. It is mentioned that subsequently Sita Ram moved and application for setting aside the ex -parte decree which is sub -judice. He is alleged to have filed a First Information Report on 21st December, 1985 i.e. after 48 days of eviction in the Police Station Vidhayakpuri, Jaipur. Some substance of the First Information Report was quoted by the petitioner. He submits that on this FIR the CID after investigation submitted a charge -sheet on the basis of which the cognizance has been taken. His case is that proceedings deserve to be quashed on several counts. The first submission made by the learned Counsel is that the entire case is basically of civil nature and criminal court ought not to have taken the cognizance. Secondly, that the petitioner is holding a valid and legal decree for eviction and it was in execution of the decree that the complainant has been evicted and that too after the Court's providing for police assistance. It is further contended that the charge - sheet mentioned about a report having been made on 3rd November, 1985 but the basis of the challan is the First Information Report dated 21st December, 1985 and, therefore, the latter being hit by Section 162 Cr.PC, the same is inadmissible in evidence and case cannot proceed in the absence of First Information Report. It is further submitted that the statements of the witnesses have been recorded inordinately delayed and they are not worthy of reliance. Some more arguments on the facts of the case were also advanced which are not necessary to be mentioned at this stage.

(3.) I have given my earnest consideration to the rival contentious and have also perused the case law cited and also called for the record of the trial court for perusal of the original documents placed on record.