SHARMA, J. - (1.) THIS revision petition has been filed against the order of charge passed by Additional Chief Judicial Magistrate Chomu Distt. Jaipur dated 7.7.2011 in Case No. 1232 of 2008 whereby charge against the accused petitioner was framed for the offence under Sections 447, 341 and 323 IPC.
(2.) BRIEF facts of the case are that an FIR was lodged at Police Station Samod under sections 143, 447, 379 IPC by the complainant relating to the fact that he is in possession of his agriculture land bearing Khasra No. 1043, 1044, 1045, 1046/2398, 1049, 1050, 1051, 1052, 1054, and 1055 upon which pucca construction of houses including well is in possession of the complainant. It was alleged in the FIR that the accused petitioner is trying to dispossess the complainant and is also attempting to encroach upon the khatedari land of the complainant. Upon the said FIR police authorities registered a case under Sections 143, 447, 379 IPC against the petitioner. Having coming to know of the said FIR, illegally lodged by the complainant, the petitioner submitted a representation to the IG Police Jaipur Range, I, wherein it was stated that the report which has been lodged bearing No. 128/2007 against the petitioner is based upon incorrect facts and the same has been done so as to harass and humiliate the petitioner. It was requested that he investigation is not being properly conducted and the investigation may also be ordered to be transferred. It was also stated that the complainant Ramjilal has been in police service so as to illegally encroach upon the land of the petitioner bearing Khasra No. 1056/2400. As the FIR is illegal based on incorrect facts the petitioner is submitting this misc. petition before this Court for quashing and setting aside the said FIR. A power of attorney was given to the petitioner by Smt. Gyarsi Devi w/o Kalu Ram, relating to Khasra No. 1056/2400 area 0.95 hectare and khasra No. 1053/2401 area 1.58 hectare total area 2.53 hectare. The said power of attorney was executed by Smt. Gyarsi w/o Kalu Ram on 8.11.2006 and by such document petitioner was entrusted ownership rights over the said agricultural land and it was narrated in the document that the petitioner shall be empowered to take possession of the land and he is further responsible for maintaining the same and shall also be free to sell or transfer it to any person as per his sweet will. The challan has been filed against the accused petitioner under Section 341, 323 and 447 IPC on 7.7.2011. On this date substance of the accusation was also pronounced by the trial Court. Mr B.N. Sandu drawn attention of this Court towards the order sheet dated -7.7.2011 in which it was stated that the accused was not present and his attendance was exempted as his counsel was present. While passing the order dated 7.7.2011, the order indicates that the accused has refused the substance of the accusation and wants trial. Mr. Sandu submits that when the accused was not present on 7.7.2011 how he can deny the substance of accusation and demand the further trial. For that purpose Sec. 251 of the Cr.P.C. is reproduced as under: 251. Substance of accusation, to be stated. When in a summon case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.
(3.) THE operative part of the order dated 7.7.2011 read as under: - JUDGEMENT_704_RAJLW1_2014.jpg;