Sahab Ram And Ors vs State Of Rajasthan And Ors

Learned counsel for the petitioners have drawn the attention of this Court towards the adjudication made by a co-ordinate Bench of this Hon'ble Court, in relation to the same Criminal Case No.52/1996, vide order dated 23.02.2018 passed in S.B. Criminal Misc. Petition No.274/2015, whereby the order taking cognizance against the petitioners therein has been quashed. The said order dated 23.02.2018 reads as under:

"Through this miscellaneous petition under Section 482 CrPC, the petitioners herein have approached this court for challenging the order dated 12.01.2015 passed by learned Additional Sessions Judge, Raisinghnagar dismissing the revision and affirming the order dated 17.12.2012 passed by learned Judicial Magistrate, First Class, Raisinghnagar in Criminal Case No.52/1996 taking cognizance against the petitioners for the offences under Section 466, 467, 471 and 120-B IPC.

The facts in brief are that the respondent complainant Shri Kulwant Ray lodged an FIR No.59/1996 against the petitioners alleging inter alia that the petitioners got the plot No.194 of Village Ganguwala allotted in their own name by means of cheating and forgery in the Panchayat records. The Investigating Officer investigated the matter thoroughly and came to a conclusion that the offences alleged were not made out against the accused. For reaching to this conclusion, the Investigating Officer, collected documents of various enquiries conducted by the Revenue authorities in relation to the alleged fraudulent allotment. The complainant challenged the questioned allotment by filing a revision before the ADM, who upheld the allotment. The writ petition preferred by the complainant against the revisional court's order and so also the special appeal have been dismissed by this court. However, the learned Judicial Magistrate took cognizance against the petitioners while accepting the protest petition submitted by the complainant by the order dated 17.12.2012 and summoned them to face trial for the offences mentioned above. The revision preferred by the petitioners against the said order has also been dismissed.

Learned counsel Mr. Saharan urged that the complainant assailed the questioned allotment of plot made in favour of the petitioner by filing a Writ Petition No.3752/1996 in this court. The said writ petition was rejected on 12.03.1997. He further pointed out that the Special Appeal No.604/1997 preferred against the Single Bench judgment was also rejected and hence, as per Mr. Saharan, allowing prosecution of the petitioners in this case on the allegation that the allotment was fraudulent is absolutely unwarranted. He, thus, urges that the miscellaneous petition should be accepted.

No one has appeared to opposed the petition on behalf of the respondent No.2 complainant, though power was filed on his behalf.

Learned Public Prosecutor has supported the arguments advanced by Mr. Saharan and urged that the Investigating Officer collected the various orders passed by the competent authorities upholding the allotment of the disputed plot in favour of the petitioner and thus, the criminal court cannot sit over such orders so as to subject the petitioner to trial.

I have given my thoughtful consideration to the arguments advanced at bar and gone through the material available on record.

Suffice it to say that the most striking and glaring feature of the case is that the order dated 22.03.1997 passed by this court in the Writ Petition No.3752/1996 filed by the respondent No.2 complainant Kulwant Ray, which was rejected by this court in the following terms :-

"It is the case of the petitioner that plot No.194 situated at Chak 59 RB was originally allotted to one Ladu Ram and, in turn, Ladu Ram transferred this particular khasra to School Committee by sale-deed dated 20.03.72. However, the Panchayat Samiti has allotted the same plot to respondents No.2 & 3 by allotment dated 10.08.84 which could not have been done.

On appreciation of the entire material on record, the revisional Court has come to the conclusion that the plot transferred is different than that allotted to Ladu Ram. The finding is a finding of fact arrived at on appreciation of the material on record. Nothing has been brought to the notice of this Court persuading to take a different view.

The writ petition is dismissed."

As the allotment of the disputed plot made in favour of the petitioners has been affirmed by the competent authorities, i.e. the Additional Collector while exercising the revisional jurisdiction and since the order passed by the Additional Collector has been affirmed by this court in the above mentioned writ petition and the special appeal while exercising the high prerogative writ jurisdiction, allowing the prosecution of the present petitioners to be continued would be nothing short of gross abuse of the process of court and a flagrant disregard to this court's orders. The allotment having received the stamp of approval of this court in exercise of the writ jurisdiction cannot be called into question in a prosecution before a Magistrate on the ground that the same is illegal/fraudulent. The learned Magistrate while passing the order taking cognizance was not apprised of the orders passed by this court in the writ jurisdiction and the appellate jurisdiction affirming the order of the learned ADM. Learned Magistrate made observation casting doubt on the order of the revision court, but once the said order has been affirmed in writ jurisdiction by this court, manifestly, the same cannot be questioned. In view of these facts, this court feels that the impugned orders cannot be sustained as they amount to a gross abuse of process of law.

Hence, the instant miscellaneous petition deserves to be and is hereby allowed. The impugned orders dated 17.12.2012 passed by learned Judicial Magistrate, First Class, Raisinghnagar and dated 12.01.2015 passed by learned Additional Sessions Judge, Raisinghnagar and all further proceedings sought to be taken thereunder against the petitioners are quashed.

The record be returned to the trial court."

Counsel for the petitioners, thus, makes a limited submission that since the alleged offence pertains to the same FIR No.59/1996 resulting into Criminal Case No.52/1996, and that, the role attributed to the present petitioners is the same as that of the petitioners in S.B. Criminal Misc. Petition No.274/2015, therefore, the same order, as quoted above, may also be passed in the present petition. Counsel for the respondent though vehemently refuted the aforesaid submission made on behalf of the petitioners on merits, but is unable to argue as to the applicability of the aforequoted judgment rendered by the co-ordinate Bench of this Hon'ble Court in S.B. Criminal Misc. Petition No.274/2015 on 23.02.2018, so much so that he is not able to distinguish the case of the present petitioners from that of the petitioners in S.B. Criminal Misc. Petition No.274/2015. It is observed that the FIR, criminal case number and order of cognizance are common.

In view of the above, the present petition is allowed and the impugned order dated 17.12.2012 passed by Judicial Magistrate, First Class Raisinghnagar, District Sri Ganganagar as well as the order dated 19.07.2018 passed by learned Additional Sessions Judge, Raisinghnagar, District Sri Ganganagar, and all further proceedings, are quashed.