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Judgment
This criminal misc. petition under Section 482 Cr.P.C.
has been preferred against the order dated 30.05.2013 passed by
learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases,
Jodhpur in Criminal Revision No.07/2011, affirming the order
dated 02.02.2011 passed by the learned Judicial Magistrate,
Jodhpur City, Jodhpur in Criminal Original Case No.570/2010.
Learned counsel for the petitioners states that the
charge-sheet was filed by the police after investigation for the
offences under Sections 448 and 427 IPC.
Learned counsel for the petitioners further states that
since the learned court below had not found the offence to be
made out under Section 448 IPC, therefore, continuance of the
proceedings for the offence under Section 448 IPC was not
permissible.
Learned counsel for the petitioner also states that the
offence under Section 427 IPC is a non-cognizable offence,
therefore, the investigation itself was erroneous and all the
consequential proceedings were nullity.
Learned counsel for the petitioners further states that
originally the offence was found to be made out only under
Section 427 IPC, which is a non-cognizable offence, and therefore,
the challan itself could not have been filed by the police, unless
appropriately directed by the learned Magistrate.
Learned Public Prosecutor however, opposed the
submissions made on behalf of the petitioners on the ground that
the petitioners failed to raise the issue before the learned court
below, and therefore, new point could not have been raised at the
time of revision.
Learned Public Prosecutor further states that since
originally the police had found the offence to be made out under
Section 448 IPC, therefore, it was within its purview to have made
the investigation as the offence under Section 448 IPC is a
cognizable offence.
After hearing the learned counsel for the parties as well
as perusing the record of the case, this Court is of the opinion that
at the inception, the offence was found to be made out under
Section 448 IPC after thorough investigation. Since the offence
under Section 448 IPC is cognizable, therefore, the police has
rightly put the investigation before the learned court below, and
exclusion of Section 427 IPC at a subsequent stage, would not
have the retrospective effect on the case. Moreover, the learned
courts below have applied their mind and have come to the
conclusion that such issue was not raised before the learned court
below at the appropriate stage, and hence, any proceeding was
not illegal ab initio. Thus, this Court is of the opinion that the
proceedings and the impugned orders are well justified and do not
call for any interference by this Court.
Consequently, the present misc. petition is dismissed.