Santosh Bharti vs State of Rajasthan and Others

Vijay Bishnoi, J.—This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 03.02.2015 passed by the Sessions Judge, Jalore, District Jalore (hereinafter referred to as ''the revisional court'') in Criminal Revision No. 47/2012 preferred on behalf of the petitioner and another co-accused Tararam. The revisional court has dismissed the revision petition and affirmed the order dated 22.06.2012 passed by the Judicial Magistrate, First Class, Jalore (hereinafter referred to as ''the trial court''), whereby the trial court has rejected the FR No. 7/2008 of Police Station, Bagra, District Jalore and accepted the protest petition filed by the respondent No. 2 and ordered for taking cognizance against the petitioner for the offences punishable under Sections 420 and 120-B IPC. The trial court has also summoned the petitioner and other co-accused through arrest warrant.

Learned counsel for the petitioner has argued that from bare perusal of the complaint filed by the respondent No. 2, it is clear that the dispute between them is in relation to nonpayment of money in lieu of execution of the registered sale-deed of a house and essentially the same is of civil nature. It is also contended that after thorough investigation, the police has filed negative final report while concluding that no offence as alleged in the complaint is made out against the petitioner and other co-accused person, however, the trial court without much deliberating upon the conclusion arrived at by the police, while blindly placing reliance upon the statements of the witnesses recorded in respect of the complaint under Sections 200 and 202 Cr.P.C. has taken cognizance against the petitioner for the offences punishable under Sections 420 and 120-B IPC.

Learned counsel for the petitioner has submitted that even from the statement of the witnesses recorded before the trial court, no offence is made out against the petitioner and, therefore, the trial court has erred in taking cognizance against him for the offences punishable under Sections 420 and 120-B IPC and the revisional court has also erred in affirming the order passed by the trial court. Learned counsel for the petitioner has further argued that the trial court has also erred in summoning the petitioner through arrest warrant at the first instance. It is contended that the trial court should have summoned the petitioner through bailable warrant instead of arrest warrant at the first instance and if the said bailable warrant could not be served upon the petitioner for whatsoever reasons, then only the trial court should have summoned the petitioner through arrest warrant.

In respect of the above argument learned counsel for the petitioner has placed reliance on a decision of Hon''ble Supreme Court rendered in Vikas Vs. State of Rajasthan, .

Heard learned counsel for the petitioner and perused the impugned orders.

The trial court has discussed the evidence collected by the police during the course of investigation and recorded a specific finding that why the trial court is not agreed with the conclusion of the Investigating Agency recorded in the FR No. 7/2008. The trial court has observed that the possession of the house in question was not handed over to Tararam by the complainant despite execution of the registered sale-deed. The trial court further observed that in the evidence, the complainant and his witnesses have clearly stated that the accused persons are threatening them to get the house vacated. The trial court has also taken into consideration the fact that Tararam has filed a civil suit while claiming decree of possession and in that civil suit, the complainant has already filed a counter claim praying for a decree of cancellation of the said registered sale-deed on the ground that the whole amount as agreed has not been paid to him. The trial court has also taken into consideration the statement of the complainant and witnesses recorded under Sections 200 and 202 Cr.P.C. and observed that in those statements, the complainant and witnesses have clearly revealed that the petitioner had assured him to give the remaining amount of Rs. 4,00,000/- but refused to pay the same despite repeated requests. The trial court has held that at the time of taking cognizance, the meticulous examination of the evidence available on record is not required and only it has to see whether prima facie case is made out against the accused persons or not.

The revisional court has affirmed the order passed by the trial court while holding that the petitioner has failed to point out any illegality in the order of the trial court. The revisional court has also observed that there is no jurisdictional or error apparent on the face of the record in the order passed by the trial court.

After going through the impugned orders and after perusing the material available on record, this Court is of the opinion that prima facie evidence for taking cognizance against the petitioner for the offences punishable under Sections 420 and 120-B IPC is available on record and, therefore, the trial court as well as the revisional court have not committed any illegality in passing the impugned orders.

The another prayer of the petitioner to the effect that the trial court should have summoned the petitioner through bailable warrant is concerned, it is noticed that while summoning the petitioner through arrest warrant, the trial court has clearly observed that looking to the nature of the seriousness of the crime committed by the petitioner, the petitioner should be summoned through arrest warrant.

The judgment rendered by the Hon''ble Supreme Court in Vikas v. State of Rajasthan (supra) is quite distinguishable on the facts as in that case, point before the Supreme Court for consideration is that whether the attendance of the appellant could have been best secured by issuing a summon simpliciter or a bailable warrant instead of a non-bailable warrant in an application under Section 319 Cr.P.C. Here in this case the trial court has not summoned the petitioner while exercising power under Section 319 Cr.P.C. The trial court, after taking into consideration the conclusions of the final report filed by the police and evidence produced by the complainant in support of protest petition, has taken cognizance against the petitioner and ordered to summoned them through arrest warrant.

At this stage, learned counsel for the petitioner has submitted that the petitioner is ready to appear before the trial court on his own, therefore, some time may be granted to him.

Looking to the facts and circumstances of the case particularly the fact that the trial court has summoned the petitioner through arrest warrant way back on 22.06.2012, this Court is of the opinion that some time can be granted to the petitioner to appear before the trial court on his own.

Resultantly, this criminal misc. petition being devoid of merits is dismissed, however, direction of issuance of arrest warrant against the petitioner passed by the trial court on 22.06.2012 shall be kept in abeyance till 23.03.2015 with a direction to the petitioner to appear before the trial court on or before 23.03.2015 and to furnish bail bonds in the sum of Rs. 20,000/- along with two surety bonds in the like amount each. If the petitioner appears before the trial court on or before 23.03.2015 and furnishes bail bonds and surety bonds as aforesaid, he may be released on bail by the trial court. However, it is made clear that if the petitioner fails to appear before the trial court on or before 23.03.2015 and also fails to furnish bail bonds as directed above, the order passed by the trial court summoning the petitioner through arrest warrant shall stand revived automatically.

Stay petition also stands dismissed.