1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR O R D E R S.B.CRIMINAL MISC.PETITION NO.1233/2002 Harish Sharma Vs. Mahesh Kumar & Ors. S.B.CRIMINAL MISC. PETITION UNDER SECTION 482 CR.P.C. ***** DATE OF ORDER : 21st APRIL,2009 HON'BLE MR.JUSTICE S.P.PATHAK None present for the petitioner Mr.Bhavnish Kumawat, Public Prosecutor Mr.Mahesh Chand Gupta, for the respondents BY THE COURT: By filing this Criminal Misc. Petition under Section 482 Cr.P.C., the petitioner has challenged the order dated 10.1.2001 passed by Addl. Civil Judge & Judicial Magistrate (Jr.Div.) First Class No.3, Kota North, District, Kota in Cr.Case No.266/97 by which the learned Magistrate discharged the accused respondents No.1 to 12 for the offences under section 465, 471, 120-B I.P.C. in compliance of the decision of the Apex Court in the case of “Common Cause”, A Registered Society Through its Director vs. Union of India & Ors. reported in AIR 1997 SC page 1539. Briefly stated the facts necessary for disposal of the present petition are that the complainant, who was former President, Rajasthan Sanskrit Shiksha Vibhagia Shikshak Sangh submitted a report before S.P., Kota on 21.1.1995. In the report, 2 it was inter alia alleged that Yogesh Kumar Sharma, Divisional Education Officer ke-6 Trishul Bhawan, Sabarmati Colony, Kota and Shri Mahnipal Singh, Education Prasar Officer both were issuing false, fabricated and forged documents and have committed offence. The S.P., Kota sent the report to the Police Station, Kethunipol for investigation in the matter. The investigation could not be completed and during pendency of investigation a PIL was filed in this Court and on the direction of the High Court, F.I.R. No.144/96 was registered under sections 420, 466, 468, 471 & 120-B I.P.C. and after investigation police filed challan against the accused respondents under sections 465, 471 & 120-B I.P.C. In relation to some of the accused, matter was kept pending under section 173 Cr.P.C. The matter was also kept pending for arguments on charge from 1997 to 2000. The learned trial court in compliance of the decision rendered in “Common Cause” case (supra) by the Apex Court discharged the accused vide order dated 10.1.2001. Feeling aggrieved with the aforesaid order, this petition has been filed. No body has put in appearance on behalf of petitioner today. On previous dates of hearing i.e. on 31.1.2008 and 12.2.2008 also no body appreared to argue the case on behalf of the petitioner. The counsel for the respondents insisted to take up the matter for final disposal, therefore, the matter has been taken up for final disposal. The main graounds stated in the petition are that there was no fault of the petitioner and the case could not be taken up by the trial court , therefore, delay could not be usurp 3 to discharge the accused in view of decision rendered by the Apex Court in the case of “Common Cause” (supra). It is also the ground that in the petition, the trial court in fact has not applied this law. In “Common Cause” case(supra) the Hon'ble Apex court while scanning the phrases 'pendency of trials' as employed in paragraphs from 1(a) to 1(c) and 'non-commencement of trial' as employed in paragraphs from 2(b) to 2(f) has observed as under:- “(i) In cases of trials before Sessions Court the trials shall be treated to have commenced when charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the concerned cases. (ii) In cases of trials of warrant cases by magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973 while in trials of warrant cases by magistrates when cases are instituted otherwise than on police report such trials shall be framed against the concerned accused under Section 246 of the Code of Criminal, Procedure 1973. (iii) In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under section 251 whether they plead guilty or have any defence to make. III. In paragraph 4 of our judgment in the list of offence to which directions contained in paragraphs 1 and 2 shall not apply, the following additions shall be made : (n) matrimonial offence under Indian Penal Code including Section 498-A or under any other law for the time being in force : (o) offence under the Negotiable Instrument Act including offence under Section 138 thereof ; (p) offence relating to criminal misappropriation of property of the complainant as well as offence relating to criminal breach of trust under Indian Penal Code or under any other law for the time being in force; (q) offence under Section 304-A of the Indian Penal Code or any offence pertaining to rash and negligent acts which are made punishable under any other law for the time being in force; (r) offence affecting 4 the public health, safety, convenience, decency and morals as listed in Chapter XIV of the Indian Penal Code or such offence under any other law for the time being in force. It is further directed that in criminal cases pertaining to offence mentioned under the above additional categories (n) to (r) wherein accused are already discharged or acquitted pursuant to our judgment dated 1st May are liable to be proceeded against for such offence pursuant to the present order and are not entitled to be discharged or acquitted as aforesaid, the concerned criminal court shall suo motu or on application by the concerned aggrieved parties shall issue within three months of the receipt of this clarificatory order at their end, summons or warrants, as the case may be, to such discharged or acquitted accused and shall restore the criminal cases against them for being proceeded further in accordance with law. It is however made clear that in trials regarding other offence which are covered by the time limit specified in our earlier order dated 1st May 1996 wherein the concerned accused are already acquitted or discharged pursuant to the said order, such acquitted or discharged accused shall not be liable to be recalled for facing such trials pursuant to the present clarificatory order which qua such offence will be treated to be purely prospective and no such cases which are already closed shall be reopened pursuant to the present order. IV. Copies of this clarficatory order shall be communicated by the Office of this Court to all the High Courts, Chief Secretaries of all the States and the concerned administrative Heads of all the Union Territories. Registrars of the High Courts shall be requested by the Office to communicate copies of this clarificatory order to all the criminal courts under the control and superintendence of the respective High Courts with direction to send Compliance Reports to the High Courts concerned within three months from the date of receipt of communication of this clarificatory order at their end.” The learned trial court in view of above decision by the Apex court after hearing both the sides on the application of the respondents to drop the proceedings against them, discharged the accused on account of long pendency of the case of more than 2 years. It was observed that present matter was 5 also pending for trial since 1997. Therefore, it does not appear that the trial court committed illegality in passing the impugned order. I do not find a reason to take a different view than the one which was taken by the trial court. The petition being devoid of merit is liable to be dismissed. In the result, the petition stands dismissed. (S.P.PATHAK) J. BKS/-