S.B.Cr.Misc. Application No. 964/09. In S.B. Cr. Misc. Petition No. 1311/09. Date of Order: 29/09/2009 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. RK Mathur, for the petitioners. Mr Javed Choudhary, PP, for State. Mr. Anurag Sharma, for the respondent. REPORTABLE This Misc. Application had been filed by the petitioners on 18.8.09 with the prayer that the respondents be directed not to submit the charge-sheet before the concerning Magistrate. Further, it has been prayed that an explanation may be called from the SHO as to why no investigation had been done in relation to its jurisdiction, in the facts and circumstances of the case. In the alternative, it has been prayed that the Court may hear the matter afresh by giving an opportunity of hearing to the opposite party and decide the same on merits. 2. Earlier, a Criminal Misc. Petition (1311/09) was filed by the present petitioners with a prayer that FIR No. 35/09 registered at Police Station, Kota City be quashed. Further directions to the SHO/ Investigating Officer, Mahila Police Station, Kota not to proceed further in the matter. The said Misc. Petition was decided by this Court on 28.7.09 with the following order: “Having regard to the facts and circumstances of the case and the submissions made by the learned counsel for the petitioners, I deem it just and proper to dispose of this criminal Misc. Petition with the direction to the SHO, Police Station Mahila Thana, Kota that he shall first consider the question of its jurisdiction with regard to the alleged incident and decide as to whether the same fall within its area or not. In case he comes to the conclusion that the incident had not taken place within jurisdiction then he shall take appropriate steps in accordance to law, for proceeding further.” 3. In the instant Misc. Application filed by the petitioners, it has been averred that certified copy of the order of this Court dated 28.7.09 was submitted to the SHO, Mahila Thana, Kota on 1.8.09 and a fax copy of the same was also sent to the Superintendent of Police, Kota. Thereafter, the petitioners had filed a detailed representation, along with documents, to the SHO, Mahila Thana, Kota and a copy thereof was also sent to the Superintendent of Police, Kota City, around 10th August, 2009. Further, it is stated that when the petitioners appeared before the learned Magistrate on 1st August, 2009, the case was ordered to be fixed for 22.8.09 and as per their information, the police was to file the charge-sheet on that day. Therefore, it is submitted in this application that if the charge-sheet is submitted, then the very purpose of filing it would be frustrated. Further, filing of the charge-sheet would amount to disobedience of the directions given by this Court. It has also been averred that the SHO, Mahila Police Station is not proceeding as per the provisions of law and is deliberately ignoring the material on record. He is going to file the charge-sheet, even though no part of the alleged action had taken place within the jurisdiction of the Police Station concerned and Investigating Agency is also not empowered to undertake any investigation in FIR No. 35/09. Further, it has been stated that to prevent the abuse of the process of the Court, petitioners seek indulgence of this Court for issuance of directions to SHO, Mahila Thana, Kota City to stop the investigation and to act in accordance to the provisions of Section 177 and 179 Cr.P.C., as well as the various judgments given by the Hon'ble Apex Court and the High Court. 4. Instant Application came up before this Court on 24th August, 2009 whereupon the learned Public Prosecutor was directed to clarify the position and it was also ordered that the Investigation Officer along with case diary may be called, on the next date. The matter was then listed on 27th August, 2009. On that day, the learned Public Prosecutor had made submissions on the basis of the factual report submitted by the SHO, Mahila Thana, Kota City, Kota. On having considered the material on record, including the factual report, it was observed by this Court that neither from the report of the SHO, nor from the perusal of the case diary, it is clear as to what steps were taken in furtherance of the order dated 28th July, 2009 passed by this Court in the petition (1311/09). Therefore, it was thought proper to call upon the Superintendent of Police, Kota City, Kota in person so as to explain the steps taken to comply with the aforesaid order passed by this Court in the Cr. Misc. Petition. 5. The material placed on record goes to show that after having received the copy of the order of this Court on 1st August, 2009 and upto filing of challan on 22.8.09, no investigation was conducted. Opinion was sought from APP-II in the Court of Magistrate concerned and on that very day, the opinion was given that there is evidence on record in respect of jurisdiction of the Police Station at Kota. It is to be noticed that there is no dispute about the fact, as revealed from the material on record, that after passing of the order by this Court on 28th July, 2009, the Investigating Agency had not made any further investigation whatsoever, in respect of the observations made by this Court as to whether any incident had taken place within the jurisdiction of Police Station, Kota. Neither further evidence was collected nor any steps were taken by the Investigating Agency so as to come to the conclusion that the SHO, Mahila Thana had jurisdiction in the matter. Further, it is significant to note that the opinion sought from APP on 11th August, 2009 has not at all been referred to in the factual report which was placed before this Court on 27th August, 2009. There is not even a whisper with regard to the fact that after receipt of the order of this Court any steps had been taken by the Investigating Agency so as to be satisfied that the alleged action had taken place within the jurisdiction of the Court at Kota. 6. However, the present position is that the Investigating Agency has already submitted a charge-sheet before the concerning Court on 22nd August, 2009. Thereafter, the learned Magistrate has passed appropriate orders on the same day. In such view of the matter, I deem it proper to observe that the petitioners may file an application before the court concerned in respect of jurisdiction of the Court at Kota, under the appropriate provisions of law. They may also place on record the relevant documents and raise all the objections which they had sought to raise before this Court. In case an application in respect of jurisdiction of the Court at Kota is filed, the same shall be decided first by the Court concerned, in accordance with law. 7. Before parting with this order, the omission and commissions of the SHO, Police Station, Mahila Thana, Kota needs to be taken note of and appropriate order is required to be passed in that respect. In compliance of the order of this Court dated 27th August, 2009, the Superintendent of Police, Kota was present in the Court on 1.9.09 and the learned Government Advocate was directed to place on record, by way of affidavit of the SHO, Mahila Thana, Kota, the events which had taken place since receiving of the order (28.7.09) on 1st August, 2009, and upto the filing of challan on 22nd August, 2009. The case was then ordered to be listed on 4th September, 2009. No affidavit of the concerning SHO was filed before the Court on the next date, on the ground that he was informed by the Superintendent of Police, Kota about the order dated 1.9.09 only yesterday evening, i.e. 3.9.09. 8. Consequently, it was ordered on 4.9.09 that the Superintendent of Police, Kota City, Kota is to explain in writing as to why timely information/ instructions were not given to the SHO concerned in respect of the order passed on 1.9.09. In compliance thereof, the Superintendent of Police, Kota appeared on 7.9.09 and informed the Court that intimation with regard to the orders of this Court passed on 1.9.09 was sent in writing to SHO, Mahila Thana, Kota City on 2.9.09 and thereafter, follow up information was also sent from the office of the Superintendent of Police, telephonically on 3.9.09. The said explanation given by the Superintendent of Police, Kota City was by way of an affidavit, wherein he had categorically deposed in Para 3 and 4 as under: “3. That about the order passed on 1.9.09 by this Hon'ble Court, the humble applicant has sent a letter to SHO, Police Station Mahila Thana, Kota City Kota on 2.9.09 with the direction to comply with the order of Hon'ble Court. A photo stat copy of the letter dated 2.9.09 is enclosed herewith and marked as Annex.R/1. 4. That due to huge procession of Anant Chaturdasi, the humble applicant was busy to maintain law and order situation in the city however, to ensure the compliance of order of Hon'ble Court, the humble applicant on 3.9.09, again informed to SHO, Police Station, Mahila Thana, Kota City, Kota telephonically.” 9. It is to be noticed that the letter dated 2.9.09 which was placed on record along with the said affidavit and marked as Annex.R/1, bears an endorsement of receipt of the Police Station dated 2.9.09 at 2.50 PM. 10. On the other hand, Shri Rajesh Kumar Giri, SHO Mahila Thana had filed an affidavit on 7.9.09 (9537/09), tendering unconditional and unqualified apology for not filing/ submitting the affidavit on 4.9.09, of the events which had taken place between 1.8.09 to 22.8.09, as per the directions of this Court, because he was busy in maintaining law and order situation in Kota City, on the eve of Anant Chaturdashi. Further, it was deposed that however the deponent was present in person before the Court on 4th September, 2009. When the SHO had submitted on 4.9.09 that he could not file the affidavit as he was only informed on 3rd September, 2009 and in the affidavit of the Superintendent of Police, Kota filed on 7.9.09, it was deposed that intimation in writing with regard to the order passed by this Court on 1.9.09 was sent to the SHO, Mahila Thana, Kota City on 2.9.09, and thereafter, following up information was also sent from the office of the Superintendent of Police, telephonically, on 3.9.09, that this Court had observed on 7.9.09 that: “In view of the above, the information given before this Court by SHO concerned on 4.9.09 to the effect that he is unable to file the affidavit as directed by the order dated 1.9.09 because he had received the information only on 3.9.09, prima facie appears to be incorrect and false.” 11. Moreover, in another affidavit filed by Shri Rajesh Kumar Giri SHO, 10.9.09 (9739/09) it has been categorically deposed in Para 3 and 8 as under: “3. That for the first time i.e. On 3.9.09 the S.P., Kota City, Kota has informed me about the order passed by this Hon'ble Court on 1.9.09 and also directed me to contact Government Advocate and file affidavit as desired by the Hon'ble Court on 4.9.09 at 10 AM positively.” “8. That the written letter dated 2.9.09 issued by the office of S.P., Kota City, Kota has not been received by the humble deponent upto 4.9.09 at 1.20 AM.” 12. It may be noted here that as per the receipt endorsed on the intimation sent by the S.P. Office on 2.9.09, it was duly received at the Police Station on 2.9.09 at 2.50 PM. Besides, as per schedule `D' filed along with the affidavit (9739) before this Court, it had been mentioned in the rapat No.57 of the rojnamcha dated 2.9.09 at 5.30 PM that the SHO had returned to the Police Station. The Superintendent of Police has not only categorically deposed but in support of the same, he has also placed on record a copy of the written requisition sent to the SHO which is duly endorsed to have been received at 2.50 PM on 2.9.09. 13. Therefore, in the aforesaid facts and circumstances of the case particularly the statement made by the SHO before this Court on 4.9.09 for which it was observed by this Court on 7.9.09 and prima facie incorrect affidavits filed by him before this Court, as apparent from the affidavit filed by the Superintendent of Police, I deem it appropriate and consider it expedient in the interest of justice that an enquiry against Rajesh Kumar Giri, SHO, Mahila Thana, Kota should be held under Section 340 CrPC by the concerning Magistrate, for giving false evidence before this Court. 14. The learned Chief Judicial Magistrate, Jaipur City, Jaipur is authorised, under the provisions of Section 340(3), to file a complaint for a preliminary enquiry to be held by the Magistrate against Shri Rajesh Giri, presently posted as SHO, Mahila Thana, Kota in respect of giving false evidence in a Court of law and for proceeding further in accordance with law. With the aforesaid liberty to the petitioners for taking appropriate steps to raise objections in regard to jurisdiction of the Court concerned, this Misc. Application is disposed of. A copy of this order alongwith relevant documents be sent to the learned Chief Judicial Magistrate, Jaipur City, Jaipur. (RAGHUVENDRA S. RATHORE),J. Gandhi/-P.A. Item no. s/1