1 SB Criminal Misc. Petition No.1644/2006 Kesaram & Anr. vs. State of Rajasthan S.B. CRIMINAL MISC. PETITION NO.1644/2006 Kesaram & anr. vs. State of Rajasthan. Date : 10.7.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.BC Bhansali, for the petitioners. Mr.VR Mehta, PP. - - - - - Heard learned counsel for the petitioners and learned public prosecutor. The grievance of the petitioners is that they moved an application under Section 340 Cr.P.C. for prosecuting the persons who made false report about the property of the accused who were not arrested by the police inspite of fact that they were convicted in murder case i.e. in Sessions Case No.31/1981 on 23.9.1981 and appeal being D.B. Criminal Appeal No.551/1981 (Nenu Ram & Ors. vs. State of Raj.) was dismissed by this Court vide judgment dated 29.9.1997. Learned counsel for the petitioners vehemently submitted that by connivance of those persons who 2 SB Criminal Misc. Petition No.1644/2006 Kesaram & Anr. vs. State of Rajasthan gave false reports in favour of the accused before the court below deliberately did so, so that the accused may not be arrested nor their property may be attached under Sections 81 & 82 Cr.P.C. It is also submitted that without deciding the application under Section 340 Cr.P.C., the trial court vide order dated 24.11.2006 observed that the accused has already been arrested and they are serving their remaining sentence, therefore, there is no reason to continue the proceedings of attachment of the property of the accused. Learned counsel for the petitioners further vehemently submitted that the trial court was under an obligation to decide the application filed under Section 340 Cr.P.C. this way or that way but the trial court could not have refused to decide the application filed under Section 340 Cr.P.C. The petitioner submitted the application with detail facts and it was supported by affidavit, then in the facts of the case, it was a fit case for holding enquiry under Section 340 Cr.P.C. Learned counsel for the petitioners relied upon the judgment of Hon'ble Supreme Court delivered in the case of State vs. Raj Singh 3 SB Criminal Misc. Petition No.1644/2006 Kesaram & Anr. vs. State of Rajasthan reported in (1998) 6 SCC 352 as well as the judgment of this Court delivered in the case of Geeg Raj vs. State of Rajasthan reported in 1982 RLW 350. According to learned counsel for the petitioners, the Hon'ble Supreme Court in the case of Raj Singh (supra) held that the Court is under an obligation to look into the substance of allegations made under Section 340 Cr.P.C. and according to learned counsel for the petitioners, therefore, in the present case, since the trial court has not applied its mind rather say not looked into the allegations made in the complaint, therefore, the trial court may be directed to hold enquiry and this is mandatory provision as held by this Court in the referred case. I considered the submissions of learned counsel for the petitioners. The trial court is under obligation to look into allegation, when there is allegation of committing offence covered under Section 195 Cr.P.C. and the Court may proceed to hold enquiry under Section 340 Cr.P.C. provided in the opinion of the Court, it is expedient in the interest of justice to do so. That satisfaction of the Court 4 SB Criminal Misc. Petition No.1644/2006 Kesaram & Anr. vs. State of Rajasthan depends upon the facts of each case. It appears from the order dated 24.11.2006 that the Court dropped the proceedings on 24.11.2006 after recording the satisfaction that the accused has already been arrested and sent to jail to serve the remaining period of service. The property under Sections 81 and 82 Cr.P.C. could have been attached and sold only if the accused failed to surrender or could not have been arrested. The grievance of the petitioners who may have legitimate interest to see that the accused be punished for committing their crime as their nearest relatives have been murdered but so far as the proceedings under Section 340 Cr.P.C. for holding enquiry for commission of an offence depends upon the facts which in the present case are that whether the Sarpanch of the concerned area or other person named by the petitioners deliberately and knowingly tried to avoid the arrest of the accused and looking to the totality of the facts of the case, it is not a fit case for exercising the jurisdiction under Section 482 Cr.P.C. for directing the court for consideration of the application under Section 340 Cr.P.C. at this belated stage when the accused has already 5 SB Criminal Misc. Petition No.1644/2006 Kesaram & Anr. vs. State of Rajasthan been arrested and send to serve the remaining period of sentence. In view of the above, this misc. petition, having no force, is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya