1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Sudhir Gupta & anr. Vs. State of Rajasthan & ors. SB CRIMINAL MISC. PETITION NO.936/2008. UNDER SECTION 482 CR.P.C. DATE OF ORDER: 19th May, 2009. HON'BLE MR. JUSTICE S.P. PATHAK Mr. S.R. Bajwa Senior Advocate with Mr. V.P. Vishnoi for the petitioners. Mr. A.K. Gupta ) for the respondents. Mr. Bipin Gupta) Mr. M.L. Kumawat) This criminal misc. petition under section 482 Cr.P.C. has been filed against the order dated 27th January 2005 passed by the Additional Civil Judge (Junior Division) and Judicial Magistrate, First Class No.11, Jaipur city, Jaipur in Criminal Complaint No.1577/2003- Sudhir Gupta and another vs. Indira Mayaram and others, by which the learned Magistrate has dismissed the complaint on account of lack of territorial jurisdiction. Briefly stated, the facts giving rise to the present misc. petition are that on behalf of petitioners a complaint was filed by the power of attorney Mr. Mahendra P. Gupta in the court of Additional Chief Judicial Magistrate No.11, Jaiur city, Jaipur on 6.11.2003. It was, inter-alia, alleged in the complaint that non- petitioner no.2 is the mother of non-petitioner no.3 who is a senior IAS officer and non-petitioner no. 4 is the office bearer of Lord 2 Krishna Housing Society which is situated in Vazirabad, Gurgaon and was registered in the year 1991 and its registration number is 602. It was also alleged that each of the petitioner purchased plots in the said housing society measuring 500 sq.yds. and they were also issued allotment letters. The respondents on being assured that the possession of the plots would be handed over to them and the needful in the matter regarding development of the land was being done, they did not hand over possession of the plots and ultimately non-petitioner nos. 2 and 3 when approached at their residence at Jaipur, they declined to hand over possession and stated that plots allotted to them have been sold to others. It was also alleged that non-petitioners have hatched a conspiracy, prepared false documents in relation to plots allotted to them, transferred the same to some other persons to earn undue profit and thereby committed an offence punishable under sections 420, 467, 471 and 120-B IPC. The learned Magistrate vide order dated 6.11.2003 sent the above complaint for investigation under section 156(3) Cr.P.C. to the police station Ashok Nagar, Jaipur. The trial court vide order dated 6.4.2004 on the report submitted by the police station Ashok Nagar, Jaipur, that the matter was not required to be investigated as it was not in their territorial jurisdiction, passed an order that notice be issued to the SHO police station Ashok Nagar, Jaipur as to why he did not register a case and also directed him to remain present in the court personally. On 27.1.2005 on behalf of 3 SHO, one Mangu Singh, SI put in appearance and made submissions before the court. The learned trial court finding that the court was not having jurisdiction in the matter dismissed the complaint. It appears that S.B. Criminal Misc. Petition No.360/2008 was filed after three years before this court with the prayer that the complaint lodged by the petitioners against the non-petitioners be investigated by the CBI and non-petitioner accused be ordered to be arrested. The above criminal misc. petition was dismissed on 25.4.2008. This court passed following order: “Learned counsel for the petitioners submits that this petition has become infructuous. The petition stands dismissed as having become infructuous.” It appears that after dismissal of the above criminal misc. petition no.360/2008 on 25.4.2008, the present misc. petition has been filed with the prayer to quash the impugned order dated 27.1.2005 passed by the learned Magistrate and to remand the matter to the concerned Magistrate for proceeding in accordance with law. I have heard learned counsel for the petitioner as well as learned public prosecutor for the state and the learned counsel for the respondents and have carefully perused the material available on file. It has been contended by the leaned counsel that in the instant case where SHO police station Ashok Nagar, Jaipur did 4 not register a case, therefore, an application was moved under section 210 Cr.P.C. to direct the SHO police station Ashok Nagar to submit report in relation to investigation made on complaint and a report was filed making a mention therein that police station Ashok Nagar had no territorial jurisdiction to investigate the matter. According to the learned counsel the court was not satisfied with the report and directed the SHO to remain present on the next date of hearing. Thereafter the matter was kept pending and on 27.1.2005 after hearing submissions of one Mangu Singh SI who appeared on behalf of the SHO police station Ashok Nagar, dismissed the complaint in illegal manner. It is also contended that the SHO police station Ashok Nagar was duty bound to register the complaint under the specific order passed by the Magistrate and in case the Magistrate was of the opinion that it had no jurisdiction to try the matter, the complaint was required to be returned in view of the provisions of the Cr.P.C. It is also contended that till now in the matter nothing has been done. On the other hand, learned counsel for the non- petitioners submits that the order passed in the year 2005 by the Magistrate has become final as the same was not challenged any further. It is also contended that the petition is not maintainable as the order passed by the trial court was of final nature and a revision petition lies. It is also contended that the criminal misc. petition no.360/2008 has already been dismissed by this court without there being any prayer to grant liberty to file fresh misc. 5 petition in the matter. It is also contended that as regards merits are concerned, it would appear that the housing society was registered in Haryana State and is situated in a village at Gurgaon, alleged plots in question are also at Gurgaon. It is also submitted that a perusal of the complaint would reveal that the Magistrate had no territorial jurisdiction to try the matter. It is submitted that a valuable right has accrued in favour of the non-petitioners as the impugned order which is sought to be challenged in this petition is of the year 2005 and by implication it would appear that was challenged in the year 2008 by filing criminal misc. petition no. 360/2008 before this court. Learned counsel for the petitioners in reply to the arguments of the learned counsel for the non-petitioners submits that this court had inherent powers under section 482 Cr.P.C. When it is brought to the notice of the court that it is essential to give effect to an order passed under the Cr.P.C. and to prevent the abuse of the process of the court or it is essential to secure the ends of justice then this court should pass appropriate order to do justice and to prevent abuse of the process of court. I have carefully considered the submissions made before me. In the present matter the factual aspect which is not in dispute is that as early as in the year 2003 a complaint was filed by the petitioners and that complaint was dismissed on 27.1.2005. The allegations in the complaint were in relation to two plots of the 6 petitioners which were allotted to them by the non-petitioners in the capacity of office bearers of the society. The plots are situated in village Vazirpura District Gurgaon. It is also not in dispute that S.B. Criminal Misc. Petition No.360/2008 has been dismissed as having become infructuous without any liberty sought by the petitioners. It cannot be disputed that the order dismissing the complaint by the trial court is the order of final nature and against that order revision lies, that has not been filed. Learned counsel for the petitioners has placed reliance on a decision rendered by the Apex Court in the case of Dhariwal Tobaco Products Ltd. and others Vs. State of Maharashtra and another- Criminal Appeal No.2055/2007 decided on 17.12.2008 and submitted that in proper case the court should exercise inherent powers in spite of the fact that revision is provided. There cannot be any two opinion about the principles laid down by the Apex Court in the case of Dhariwal Tobaco Products Ltd. and others (supra) that when the court comes to the conclusion that it is essential to prevent the abuse of the process of court or otherwise to secure the ends of justice then proper orders are required to be passed in exercise of the powers under section 482 Cr.P.C. In the above matter, following limited question was considered by te Apex Court: “Issue notice limited to the question as to whether the matter should be directed to be considered afresh by the High Court keeping in view the fact that other matters wherein similar contentions have been raised are pending before the High Court.” 7 In the above case, cognizance taken by the Magistrate on a complaint under the provisions of Food Adulteration Act, 1955 and summons were issued. A petition under section 482 Cr.P.C. was filed before the High Court of Maharashtra which was dismissed taking into consideration the earlier judgment in the case of Pratap Vs. Padode and another- 2005(30) Mh. L.J. 778 rendered by a Single Judge of the High Court and another decision of the same court in the case of Vishwanaath Ramkrishna Patil and another Vs. Ashok Murlidhar Sonar and another- 2006(5) Mh.L.J. 671. The Apex Court considering in detail the provisions of section 482 and 483 Cr.P.C. and taking into consideration the facts and circumstances of the case and also taking into consideration that other similar matters were also pending before the High Court directed the High Court to consider the matter afresh on merits. In the present matter, as has been discussed and found that the impugned order was passed on 27.1.2005 thereafter in the year 2008 criminal misc. Petition was filed that was dismissed as having become infructuous without seeking liberty to file fresh one, the question arises for consideration is whether it is a fit case to set aside the impugned order after lapse of three years, particularly, when remedy was available to the petitioner to file a revision petition. In the case of Ashok Dev Vs. Bishan Swarup- WLN (UC) 1980 page 332, in a case where cognizance order was 8 challenged by way of filing misc. petition, this court has observed in paragraphs 2 and 3 as under: “2. The application is wholly unusual. It will be seen that the impugned order is revisionable order under sections 397 and 401 Cr.P.C. and as such it was open to the petitioner to challenge it by way of a petition of revision before this Court or in the Court of Sessions. The law is well settled that if there is a specific remedy provided in law, the aggrieved party must take recourse to that remedy. In that view of the matter the petitioner cannot legitimately invoke the extra- ordinary jurisdiction of this Court under section 482 Cr.P.C. to challenge the order in question which as already stated is a revisable order under the Code of Criminal Procedure. 3. In substance, the present application is really a petition of revision. It has been so called as an application under section 482 Cr.P.C. to circumvent the provisions of the Limitation Act. The impugned order was passed on November 13, 1978. The period of limitation for filing a petition of revision against this order expired on February 12, 1979. The present petition was filed on January 22, 1980. It is thus hopelessly barred by limitation. In either view of the matter therefore this petition cannot be entertained. It is hereby dismissed.” After considering the entire facts and circumstances of the case and the law cited before me, what I find is that the complainant had efficacious remedy to challenge the impugned order by way of filing a revision petition then again when criminal misc. petition no.360/2008 was filed, he could have challenged the order. At that time, it was not brought to the notice of the court that since the complaint has been dismissed and the petitioner would approach either the revisional court or this court by filing a fresh petition then in the above circumstances it appears that the 9 petitioners have conveniently chosen to file the misc. petition knowing it fully well that after such a belated stage the question of limitation would come in their way. After having considered the entire matter, I find that this is not a fit case where this court should exercise powers vested in it under section 482 Cr.P.C. and set aside the order passed by the trial court. The law does not disentitle the petitioner to even file a fresh complaint if he so advised. In view of the fore-going discussions, I find no merit in this misc. petition and the same is liable to be dismissed. In the result, the misc. petition is dismissed. (S.P. PATHAK,J) BBLM