Mohammad AamIn and anr. Vs. State of Rajasthan and anr.

Mohammad AamIn and anr. vs State of Rajasthan and anr.

Disposition Petition dismissed Court Rajasthan Decided Aug 07, 1997

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Citation: sooperkanoon.com/759090
Court: Rajasthan High Court
Judge: P.C. Jain, J.
Decided On: Aug 07, 1997
Case Number: S.B. Cr. Misc. Petition No. 259/85
Subject: Criminal
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ] Determination as to Juvenile - Appellant was found to have completed the age of 16 years and 13 days on the date of alleged oc...

Key legal issue: Criminal
Outcome / disposition: Petition dismissed
Acts & sections: Rajasthan Municipalities Act, 1959 - Sections 87; Code of Criminal Procedure (CrPC) , 1974 - Sections 197, 397(3) and 482; Indian Penal Code (IPC) - Sections 218, 219 and 420

Parties & Advocates

Appellant / Petitioner

Mohammad AamIn and anr.

Advocate N.M. Lodha, Adv.

Respondent

State of Rajasthan and anr.

Advocate R.S. Rathore, Public Prosecutor

Legal References

Acts: Rajasthan Municipalities Act, 1959 - Sections 87; Code of Criminal Procedure (CrPC) , 1974 - Sections 197, 397(3) and 482; Indian Penal Code (IPC) - Sections 218, 219 and 420
Cases Referred: Rajkapoor v. State
Reported In: 1998CriLJ603

Excerpt

- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. .....of attack have been taken which were agitated before the learned revisional court. this petition under section 482, cr.p.c. is really an application for revision of the order of the learned magistrate. this is exactly what is prohibited by sub-section (3) of section 397, cr.p.c. merely by inserting section 482, cr.p.c. in the petition, the petition cannot be treated to be under section 482, cr.p.c. the general tendency is to label the petition to be under section 482, cr.p.c. in order to neutralize the bar placed by sub-section (3) of section 397, cr.p.c. it is not permissible that the high court should act as a second revisional court under the garb of exercising the inherent powers. it is correct that the inherent powers of high court under section 482, cr.p.c. do not stand repelled when the revisional power under section 397, cr.p.c. overlaps. it has been held in rajkapoor v. state air 1980 sc 258 : 1980 cri lj 202 at page 205; of cri lj : nothing in this code, not even section 397 can affect the amplitude of the inherent powers preserved in so many terms by the language of section 482. even so, when a specific provision is made, easy resort to inherent power is not right except under compelling circumstances. not that power should not invade an area set apart for specific power under the same code.... 6. learned counsel for the petitioners could not show how the present case comes within the preview of section 482, cr.p.c. learned counsel has assailed the main order of the learned magistrate exactly on the same grounds which were agitated before the learned addl. sessions judge. hence, this petition appears to be a second petition which is barred by section 397(3), cr. p. c. i am of the opinion that the view taken by the learned magistrate as also the learned addl. sessions judge, cannot be said to be erroneous.7. for the above reasons i do not find any force in this petition and the same is hereby dismissed. as the case is fairly old, the record of the.....

Full Judgment

ORDER

P.C. Jain, J.

1. The petitioners have moved this petition under Section 482, Cr.P.C. against the order dt. 3-6-85 passed by the learned Addl. Sessions Judge, Nohar in Cr. Revision No. 2/84 upholding the order passed by learned Munsif and Judicial Magistrate, Nohar dt. 24-9 83 in Cr. Case No. 211/83.

2. I have heard learned counsel for both the parties.

3. Non-petitioner No. 2 Noor Mohammad filed a complaint before the Munsif and Judicial Magistrate, 1st Class, Nohar alleging therein that the petitioner No. 2 made a report to Municipal Authorities stating that the encroachment made by Mohd Sudiq has been removed. This report was verified by Mohd Aainin petitioner No. 1 in the capacity of a Municpal Member. The complainant alleged that the above report has also the verification which was false. On the basis of the above application, the case which was pending in the Court was withdrawn. On the complaint, process was issued against the petitioners. The learned Magistrate by order dt. 24-9-83 found a prima facie case against the petitioners for offences under Sections 218, 219 and 420, IPC and the petitioners were summoned by boilable warrants.

4. The petitioners challenged the above order of the learned Magistrate before the learned Addl. Sessions Judge, Nohar. The main ground of attack of the petitioners was that since both the petitioners are municipal employees, they are 'public servants' and no criminal proceedings would be launched against them as per Section 197 of Cr.P.C. except with the written sanction of the Government. Since no sanction was taken by the complainant, the above complaint was not maintainable. In this connection reference was made to Section 87 of the Rajasthan Municipalities Act, 1959. Learned Sessions Judge did not dispute the contention of the learned counsel for the petitioners that the petitioners were public servants during the relevant time but declined to accede to the further argument of the learned counsel for the petitioners. It was not the job of the petitioners to indulge in falsifying or forging the documents in order to withdraw the case. He therefore, dismissed the revision petition.

5. Learned counsel for the petitioners have reiterated the same ground of attack which were taken at the revisional Court. In my opinion, this petition, purporting to be under Section 482, Cr. P. C, is not maintainable. This is virtually a second revision petition, though, labelled to be under Section 482, Cr.P.C. in which the same grounds of attack have been taken which were agitated before the learned revisional Court. This petition under Section 482, Cr.P.C. is really an application for revision of the order of the learned Magistrate. This is exactly what is prohibited by Sub-section (3) of Section 397, Cr.P.C. Merely by inserting Section 482, Cr.P.C. in the petition, the petition cannot be treated to be under Section 482, Cr.P.C. The general tendency is to label the petition to be under Section 482, Cr.P.C. in order to neutralize the bar placed by Sub-section (3) of Section 397, Cr.P.C. It is not permissible that the High Court should act as a second revisional Court under the garb of exercising the inherent powers. It is correct that the inherent powers of High Court under Section 482, Cr.P.C. do not stand repelled when the revisional power under Section 397, Cr.P.C. overlaps. It has been held in Rajkapoor v. State AIR 1980 SC 258 : 1980 Cri LJ 202 at page 205; of Cri LJ :

Nothing in this Code, not even Section 397 can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. Even so, when a specific provision is made, easy resort to inherent power is not right except under compelling circumstances. Not that power should not invade an area set apart for specific power under the same Code....

6. Learned counsel for the petitioners could not show how the present case comes within the preview of Section 482, Cr.P.C. Learned counsel has assailed the main order of the learned Magistrate exactly on the same grounds which were agitated before the learned Addl. Sessions Judge. Hence, this petition appears to be a second petition which is barred by Section 397(3), Cr. P. C. I am of the opinion that the view taken by the learned Magistrate as also the learned Addl. Sessions Judge, cannot be said to be erroneous.

7. For the above reasons I do not find any force in this petition and the same is hereby dismissed. As the case is fairly old, the record of the trial court be sent immediately for necessary action.

Same Court & Year Rajasthan · 1997 Same Parties Mohammad AamIn and anr. vs State of Rajasthan and anr. Same Subject Criminal Same Judge P.C. Jain, J. Acts & Sections Rajasthan Municipalities Act, 1959 - Sections 87; Code of Cri...

Criminal