VINOD SHANKER DAVE, J. - (1.) THIS is an application under Section 482 Cr.PC by one of the several accused against whom cognizance have been taken by the learned Judicial Magistrate No. 11, Jaipur City, Jaipur by his order dated 9th July, 1986. The cognizance against the petitioner has been taken for offences under Sections 147, 384, 427, 347, 140 and 120 IPC.
(2.) THE petitioner in this petition has stated that he is an Advocate practicing in the city of Jaipur and he owns land measuring 27' X 40' situated at Sansar Chandra Road near Government Hostel, Jaipur where the complainant Sita Ram was his tenant. His case is that he obtained a decree of ejectment against Sita Ram on 17th July, 1985 which was sought to be executed on 18th October, 1985 but there was resistance on the part of Sita Ram and on the report of Bailliff, the Court directed for providing police force and the decree was executed on 3rd November, 1985. It is mentioned in the petition that on this date, the judgment - debtor in the presence of his Advocate viz., Manohar Singh and Banwari Lal voluntarily handed over the possession and passed a receipt that the goods belonging to him, have been taken in possession by him. It is mentioned that subsequently Sita Ram moved and application for setting aside the ex -parte decree which is sub -judice. He is alleged to have filed a First Information Report on 21st December, 1985 i.e. after 48 days of eviction in the Police Station Vidhayakpuri, Jaipur. Some substance of the First Information Report was quoted by the petitioner. He submits that on this FIR the CID after investigation submitted a charge -sheet on the basis of which the cognizance has been taken. His case is that proceedings deserve to be quashed on several counts. The first submission made by the learned Counsel is that the entire case is basically of civil nature and criminal court ought not to have taken the cognizance. Secondly, that the petitioner is holding a valid and legal decree for eviction and it was in execution of the decree that the complainant has been evicted and that too after the Court's providing for police assistance. It is further contended that the charge - sheet mentioned about a report having been made on 3rd November, 1985 but the basis of the challan is the First Information Report dated 21st December, 1985 and, therefore, the latter being hit by Section 162 Cr.PC, the same is inadmissible in evidence and case cannot proceed in the absence of First Information Report. It is further submitted that the statements of the witnesses have been recorded inordinately delayed and they are not worthy of reliance. Some more arguments on the facts of the case were also advanced which are not necessary to be mentioned at this stage. Mr. Bajranglal Sharma appearing for the petitioner and the petitioner in person also placed reliance on Hanja and Anr v. State of Rajasthan (1984 Cr.LR (Raj.) 46) and submitted that the First Information Report which has been produced on record is clearly a document post starting of the investigation and the police had already reached at the spot on 3rd November, 1985 itself and it is, therefore a post investigation document. An argument was also advanced about the recovery under Section 27 of the Evidence Act and seizure under Section 102 Cr.PC. Relying on Kadungoth Alavi v. State of Kerala (1982 Cr. LJ 94), it was submitted that there is no report of seizure sent till date and it cannot be considered to be an incriminating circumstances. Reliance was also placed on Sardar Trilok Singh and Ors v. Satya Deo Tripathi 1979 Cr LR (SC) 86, and submitted that the dispute is of the civil nature. Reliance was also placed on Changanlal v. Shyamlal and Ors. 1987 Raj. Dandik Narnaya Patrika 177, T.F. Pardiwala and Ors. v. State of Rajasthan 1980 WLN 222, Jeewa Ram and Ors v. Madan Lal and Anr 1985 (1) WLN 565 and Mst. Suraj v. Multan 1976 Raj. Cr. Cases 260. With the permission of the Public Prosecutor, Shri B.K. Pathak, counsel for the complainant Sita Ram submitted that the entire case has a chequcrted history and the accused persons high handedness exhibiting the might they can circumvent the process of law by taking the law into their own hands even through the process of the Court. It is submitted that delay in lodging the FIR is fully explained in as much as the copy sent to the Superintendent of Police of the report is on record which shows that the report was immediately made but it was the police officials of Vidhayakpuri's Police Station who were siding with the petitioner and, therefore nothing could be done. He submits that no prejudice or mis -carriage of justice has been shown by the petitioner and, further that this is not the stage where this Court should interefere. The learned Counsel placed reliance on State of Uttar Pradesh v. Bhagwant Kishore Joshi : 1964CriLJ140 , The State v. Pukhia 1962 RLW 539, Gyasiram v. The State , Hari Das Mundra v. The State : AIR1959All82 , Union of India v. Prafulla Kumar Samal and Anr (1979 Cr.LJ 154) and N.S. Parameswara Iyer v. Appavu Panicker Mrithunjaya Panicker and Ors (1963(2) Cr.LJ 215).
(3.) I have given my earnest consideration to the rival contentious and have also perused the case law cited and also called for the record of the trial court for perusal of the original documents placed on record.;