SHARMA, J. - (1.) THIS misc. petition has been filed under section 482 Cr.P.C. by the petitioner Surendra Kumar Golcha, against the order dated 28.2.2009 passed by Additional Sessions Judge Dausa in Criminal Revision No. 12/2007 (old 58/2005) whereby the revision petition was dismissed and the order dated 5.4.2005 of Additional Chief Judicial Magistrate Dausa taking cognizance against owner of Golcha Group Surendra Kumar Golcha and Abimanyu Golcha for offence under section 203 of the Rajasthan Municipalities Act in complaint case No.912 of 2003 was maintained.
(2.) BRIEF facts of the case are that the petitioner is having a factory in Dausa which was established by him long back. This factory was established on the land comprising in old khasra No. 356 and new number of khasra is 768. The neighbouring khasra No. 769 is a Government land and entered as such in the name of the Government in revenue records. The petitioner has made encroachment on the land in Khasra No. 769. A notice under section 91 of the Rajasthan Land Revenue Act was issued to the Shop Stone Factory. The Tehsildar Dausa is said to have inspected the site and he found no encroachment on the land. Again in the year 2002 notice under section 91 of the Rajasthan Land Revenue Act came to be issued to the petitioner. Vide order dated 23.2.2002 the Tehsildar observed that earlier also order was passed on 31.1.1973 and there is no requirement of passing order again and again on the same issue and he therefore rejected the proceedings for removal of encroachment. A report was lodged by the Executive Officer of the Municipal Board at Police Station Dausa that Golcha Group has encroached upon an area of33'x251' of Khasra No. 769 which is registered as Siwai Chak and Germumkin Rasta by raising 6' feet height boundary wall. It was stated that this encroachment is an offence under section 203 of the Rajasthan Municipalities Act, 1959. The police on the basis of above information registered an FIR No. 353/2002 and after enquiry, it came to the conclusion that the petitioners have not made any encroachment. The police submitted a final report before the concerned Magistrate. A protest petition was filed before the Magistrate. The concerned Magistrate after hearing the parties took cognizance under Sec. 203 of the Rajasthan Municipalities Act, by order dated 20.12.2002. The petitioner and Abhimanyu Golcha filed revision petition and the revisional court allowed the revision petition vide order dated 26.4.2003 and set aside the order dated 20.12.2002 of the trial court and remanded the case to the trial court with the direction to take proceedings under sections 200 and 202 Cr.P.C. In the meanwhile report was submitted by the Tehsildar to Dy. S.P. Dausa, wherein it was stated that the area surrounded by abadi, hence demarcation is impossible. After the remand statement of Laxmi Narain Meena was recorded. The Additional Chief Judicial Magistrate Dausa vide its order dated 5.4.2005 took cognizance against the petitioner and Abhimanyu Golcha under section 203 of the Rajasthan Municipalities Act. Against the order dated 5.4.2005 the petitioner and Abimanyu Golcha filed revision petition before the Additional Sessions Judge, Dausa, who vide order dated 28.2.2009 after hearing the parties dismissed the revision petition. Against this order only the petitioner Surendra Kumar Golcha has filed the revision petition.
(3.) MR . S.S.Hora, learned counsel appearing for the petitioner Surendra Kumar Golcha has contended that the order dated 5.4.2005 of the Additional Chief Judicial Magistrate taking cognizance against him under section 203 of the Rajasthan Municipalities Act and the order dated 28.2.2009 of the Additional Sessions Judge rejecting the revision petition filed against the order taking cognizance are absolutely illegal and contrary to law. He has further contended that the dispute related to long back. The factory was established in the year 1932 which is near about 79 year ago. He has drawn attention of this court on section 305 and section 468 Cr.P.c. According to him under section 305 Cr.P.C. the Magistrate cannot take cognizance against an individual while the company is there. He has further drawn attention of this court towards section 468 Cr.P.C. where there is bar for taking cognizance after lapse of the period of limitation. Mr. S.S. Hora in support of his arguments placed reliance on R. Kalyani vs. Janak C. Mehta and others (2009) 1 SSC 516. According to him a vicarious liability can be fastened only by reason of a provision of a statute and not otherwise and for the said purpose, a legal fiction has to be created. Even under a special statute when the vicarious criminal liability is fastened on a person on the premise that he was in charge of the affairs of the company and responsible to it, all the ingredients laid down under the statute must be fulfilled.;