Ashwani Kumar Sharma @APPELLANT@Hash State of Rajasthan & Ors

Present petition has been filed under Section 482 Cr.P.C. praying that the order dated 12.1.2016 (Annx.5) passed by the Court of Metropolitan

Magistrate No.25, Jaipur Metropolitan, being non-est be set aside. It is further prayed that the order dated 23.1.2017 passed by the revisional court

below whereby order dated 12.1.2016 was affirmed, be also set aside.

Shri Suresh Pareek, learned senior counsel for the petitioner has submitted that the case FIR No.397/2013 was registered at Police Station Harmada,

Jaipur for offences under Sections 447, 336 IPC and in the said FIR, investigating agency submitted Final Report in negative form. Leaned counsel

has submitted that on 24.3.2015, the Court of Additional Chief Metropolitan Magistrate No.22, Chomu, Jaipur Metropolitan, accepted the Final Report

in negative form by passing the following order:-

“24-3-15 iqfyl Fkkuk gjekMk ds Fkkukf/kdkjh }kjk ,Qvkj la[;k 28@15 U;k;ky; esa is’k dh xbZA ifjoknh o mlds vf/koDrk vuqifLFkrA ckj&ckj :d

:ddj vkokts yxokbZ xbZ] ysfdu ckotwn rkehy dksbZ mifLFkr ugh vk;kA i=koyh dk voyksdu fd;k x;kA ifjoknh iadt flag us ljdkjh tehu ij vfrØe.k djus

ckcr~ fjiksVZ ntZ djkbZ] ftlij /kkjk 447] 336 Hkk0n0l0 esa eqdnek uEcj 397@13 ntZ dj vuqla/kku vkjEHk fd;k x;kA ckn vuqla/kku vafre izfrosnu bl

vk’k; dk is’k fd;k x;k fd i=koyh ij miyC/k lk{; o izkIr fjdksMZ o mlds dk;kZy; uxj fuxe t;iqj ds i= Øekad 366 fnukad 22-08-14 ds

fo’kys""k.k o foospu ls /kkjk 447] 336 Hkk0n0l0 o 245 jktLFkku uxj ikfydk ,DV dk vijk/k xfBr gksuk ugha ik;k x;kA vafre izfrosnu ds mDr vk/kkj

dk [kaMUk ifjoknh us ckn uksfVl rkehy ugha fd;k gSA vr% vafre izfrosnu ds vk/kkjksa dks udkjdj dk;Zokgh djus ds dksbZ vk/kkj ugha gSA fygktk

vafre izfrosnu Lohdkj fd;k tkrk gSA dsl Mk;jh izFkd dj Fkkuk gjekMk dks Hksth tkosA i=koyh Qsly 'kqekj gksdj ckn rdehy nkf[ky n¶rj gksAâ€​

Learned counsel for the petitioner contends that abruptly without any reason upon filing of an application by the Additional Commissioner of Police,

West, Jaipur, on 12.1.2016 the Court of Additional Metropolitan Magistrate No.25, Jaipur Metropolitan passed the following order:-

“12-1-16 ,ihih mi0A i=koyh dk voyksdu fd;kA i=koyh dks iqu% vuqla/kku ds fy;s fd vksiu fd;k x;k gS izdj.k dks uxj fuxe dh nks fojks/kkHkklh

fjiksVZ gS ftlds laca/k esa foLr`r vuqla/kku fd;k tkuk vko’;d gS vr% vfxze vuqla/kku dh vuqefr nh tkrh gSA i=koyh esa 'kh?kz vuqla/kku dj urhtk

U;k;ky; esa is’k djsaAâ€​

Learned senior counsel for the petitioner submits that once Final Report in negative form was accepted on 24.3.2015, the court became functus officio

and could not recall or review its order as the court was denuded of all the powers. Inter alia, it is contended that once closer report was accepted, a

valuable right accrued in favour of the accused and contrary order dated 12.1.2016 could not be passed without affording opportunity of hearing to the

accused.

Shri G.P. Sharma, learned counsel appearing for Jaipur Municipal Corporation, has submitted that even if the Magistrate accepted the Final Report

submitted in negative form, further investigation could be carried and on the subsequent report submitted by the investigating agency, cognizance of

the offences can be taken against the accused-petitioner.

To controvert, Shri Suresh Pareek, learned senior counsel, has submitted that neither subsequent report nor supplementary report of investigation was

submitted. Therefore, the Magistrate could not pass the order dated 12.1.2016.

After hearing learned counsel for the parties, there is no dispute that if a fresh material is laid before the Magistrate in the form of supplementary

report of investigation, the Magistrate on the basis of that material, if satisfied, can take cognizance of the offence. Order dated 12.1.2016 is silent on

this aspect.

Consequently, the order dated 12.1.2016 is set aside. The matter is remitted back to the Court of Magistrate to pass a fresh order upon any

supplementary report submitted or to be submitted by the investigating agency.

Shri Suresh Pareek, learned senior counsel for the petitioner, has submitted that liberty be granted to the petitioner to appear before the Court of

Magistrate before a fresh order is passed by him.

Petitioner, if so advised, may appear before the Court of Magistrate.

In view of above, present petition stands disposed of.

S.B. Criminal Misc. Petition No.2597/2018:

Learned counsel for the petitioner prays that at this juncture the present petition be dismissed as withdrawn with liberty to the petitioner to renew his

prayer if in future need so arise.

As prayed, present petition is dismissed as withdrawn with liberty, as aforesaid.