Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.38663 of 2012 ====================================================== 1. Kailash Pati Singh S/O Late Amarjeet Singh Resident Of Village Dhanao Tola Kuryapar, P.S- B. Barharia, District- Siwan. 2. Lokesh Singh @ Ramchandra Singh S/O Late Amarjeet Singh Resident Of Village Dhanao Tola Kuryapar, P.S- B. Barharia, District- Siwan. 3. Pankaj Kumar Singh S/O Kailash Pati Singh Resident Of Village Dhanao Tola Kuryapar, P.S- B. Barharia, District- Siwan. 4. Parshuram Singh S/O Late Gokhul Singh Resident Of Village Dhanao Tola Kuryapar, P.S- B. Barharia, District- Siwan. 5. Prabhunath Singh S/O Ramji Singh Resident Of Village- Dhanao, P.S- Barharia, District- Siwan. 6. Puspendra Kumar Shahi @ Pushpendra Ray S/O Bharat Shahi Resident Of Village- Dumarhar, P.S- Gughni, District- Siwan .... Petitioners Versus 1. The State Of Bihar 2. Manazer Singh S/O Laxmi Singh Resident Of Village Dhanao Tola Kuryapar, P.S- B. Barharia, District- Siwan ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER .... Opposite Parties 7 03.10.2013 Heard the learned counsel for the petitioners and the State. This is a petition for quashing the order, dated 03.08.2012, passed by the Ad Hoc, Additional District and Sessions Judge, III, Siwan, in Cr. Revision No. 214 of 2009, by which he has set aside the order, dated 15.09.2009, passed by Mr. P.C. Ananl, Judicial Magistrate, 1st Class, Siwan, dismissing the complaint under Section 203 of the Criminal Procedure Code (hereinafter referred to as, ‘the Code’) and, further, after setting aside the order, dismissing the complaint under Section 203 of the Code, directed to issue summons to the accused persons, named in complaint for offence under Section 365 of the Penal Code.
Facts
The prosecution case, as alleged in the complaint-first information report filed by one Manager Singh, that on 25.07.2004 at about 09.00 a.m. his son, Arjun Kumar Singh, went out of the house, but, did not return, then, informed the police and he was in search of his son. In the meantime, accused no. 6 in the complaint, Purhpendra Kumar Shahi, who is relative of accused 1 and 2, Kailash Pati Singh and Lokesh Singh, respectively disclosed that his son will be found out if he execute a deed with regard to the Patna High Court Cr.Misc. No.38663 of 2012 (7) dt.23-09-2013 2/6 land for which proceeding under Section 145 of the Code is going on between the informant and accused no. 1. It is, further, alleged that on this, he fully satisfied that they have kidnapped his son. It is, further, alleged that on the same date, in this connection, he also met with accused nos. 3 to 5, Pankaj Kumar Singh, Parshuram Singh, and Prabhu Nath Singh, they also impressed that if he will execute a deed with regard to the land in favour of accused nos. 1 and 2 and advised to talk with accused nos. 1 and 2 and it is alleged that all the accused persons inclusion have kidnapped his son for taking the land as ransom. It is, further, stated that the witnesses have also stated that they have seen the son of the informant talking with the accused persons. However, on the complaint, complaint was sent for institution of the case and Braharia P.S. Case No. 93 of 2004 was instituted. Police after investigation submitted final form. However, the case proceeded on protest-cum- complaint. The complainant and witnesses examined on oath and after considering the protest-cum-complaint and the statements of the complainant and witness the case was dismissed under Section 203 of the Code on the ground though the prosecution case that the victim boy was traceless and the accused persons asked to execute a deed of transfer with regard to the land in dispute under Section 145 of the Code, then, he will get his son and the boy being also freed from the clutches of the accused persons disclosed about the occurrence that the accused persons have kidnapped in a vehicle and took him to unknown place and kept there for one month, but, he anyhow managed to flee away, but, the Court below held that the allegation made does not inspire confidence and there is land disputed between the parties and prima facie no offence made out. The order of the Magistrate was assailed in revision. The revisional Court taking into consideration and on perusal of the record and hearing the parties and the case of the prosecution, the complainant as well as the fact that the witnesses have stated about Patna High Court Cr.Misc. No.38663 of 2012 (7) dt.23-09-2013 3/6 the missing of the boy, Arjun Singh, and Arjun Singh has supported the case of kidnapping and, hence, the case required to
Legal Reasoning
be proceeded for a trial as prima facie case is made out and there is sufficient ground for the proceeding and, hence, ordered that the accused persons named by the complainant called upon to face the charge with a direction to file requisites for summoning the accused persons and sent down the record to the lower Court. The said order passed in the revision before the Session's Judge in Cr. Revision No. 214 of 2009 has been challenged before this Hon’ble High Court in inherent jurisdiction under Section 482 of the Code. The learned counsel for the petitioners, however, contended that the order passed by the learned lower Court under Section 203 of the Code dismissing the complaint against which a revision ahs been filed and the revisional Court while setting aside the order of the Magistrate and instead of passing an order for further enquiry appreciating evidence and material on record hold that an offence under Section 365 of the Penal Code made out prima facie to make out a case for offence under Section 365 of the Penal Code and in other words it has been submitted that the revisional Court utmost can remand the case back for further enquiry under Section 398 of the Code and no jurisdiction to embark on merits for allegation making out prima facie case and issuing process. It has, further, been contended that when there is special power under Section 398 of the Code for remanding the case in the exigency of dismissing a complaint under Section 203 of the Code and issuing of process under Section 204 of the Code as well as discharge of the complaint enshrined, then, the general power prescribed under Section 397 of the Code read with Section 399 of the Code would not be applicable for the exigency provided under Section 398 of the Code and has placed reliance upon an unreported decision passed by the Madhya Pradesh High Court in Rewaram & Anr. Vrs. State of M.P. & Anr. decided on 6th Patna High Court Cr.Misc. No.38663 of 2012 (7) dt.23-09-2013 4/6 September, 2004, which is equivalent to 2005(1) MPHT, 85 as well as an unreported decision of single Judge of Punjab and Haryana High Court, Baljindwa Singh @ Baljant Vrs. Gurjant Singh, [Criminal Misc. M. No. 37037 of 2011 (O&M)] decided on 25th July, 2012, where it has been held that if in the opinion of the Court of revision, the trial Court has failed to properly enquiry into the matter, which could have been remanded the case back to the trial Court for passing a fresh order after due enquiry and the Court of revision may not have assumed the jurisdiction of a trial Court and order summoning the accused. It had, further, been held in unreported decision of Madhya Pradesh High Court while rejecting the contention of the other side that the revisional Court jurisdiction under Section 397 of the Code read with Section 399 of the Code, but, go into the merits of the case and to pass the impugned order on merits, but, rejected this view in view of the fact that if such argument is accepted, then, Section 398 of the Code would be redundant held that Section 398 of the Code give the power only to remand the case for further enquiry in three exigencies mentioned there in and if special power is prescribed, then, the general power is ousted. However, taking into consideration the power of revision enshrined in Criminal Procedure Code to the revisional Court both the Session's Judge and the High Court has given power under Sections 397, 398 and 399 of the Criminal Procedure Code and, further, though Section 401 of the Criminal Procedure Code is the power enshrined to the High Court, but, the same power is also available to the Session's Judge and the power under Section 398 of the Code is an ancillary power of revision. However, in decision reported in 1981 Cr.L.J. 796 (Bal Kishan Jain & Ors. Vrs. Indian Overseas Bank & Ors.) by Division Bench presided over by Hon’ble Mr. Justice S.S. Sandhawalia, the then Chief Justice of Punjab and Haryana High Court when the question arose whether the Session's Judge can direct the Chief Judicial Patna High Court Cr.Misc. No.38663 of 2012 (7) dt.23-09-2013 5/6 Magistrate or any other Magistrate subordinate to him to frame a charge and proceed with the trial after issuing process to the accused for an offence and it was held that by insertion of Section 399 of the Code with regard to the revisional power exercisable by the Court of sessions read with Section 401(1) of the Code vested in the Court of sessions power to order the subordinate Court to frame a charge and proceed with the trial and held that once the case is before the Court of sessions in it’s revisional jurisdiction, then, the power under both Sections 398 and 399 of the Code can be exercised by it and it is immaterial and academic to investigate as to which of the specific provision has been actually invoked and it has been concluded that the word further enquiry in Section 398 of the Code do not envisage within it the power to direct the person wrongly discharge be remand or that a charge be framed against him and he put on trial. However, such a power of direction is wholly within the ambit of Section 399 of the Code read with Section 401(1) of the Code which is enshrined to the larger power vested in the Court of sessions. Therefore, direction in this nature can be legally given therein and, hence, having settled the point rose whether the Session's Judge can pass order giving direction of the trial Court to frame charge under a particular section and proceed with the trial. However, the decision relied upon by the learned counsel for the petitioners on unreported decision of Punjab and Haryana High Court, (Cr. Misc. No. 37037 of 3011 (O & M) decided on 25th July, 2012) appears to have been not taken note of the decision reported in 1981 Cr.L.J. 796 (supra) by Division Bench of the same High Court. Hence, having settled the position in law that the Session's Judge while exercising his jurisdiction may exercise power under Section 398 of the Code as well as Section 399 of the Code read with Section 401 of the Code and in such jurisdiction he may make such an order and there is nothing in Section 398 of Patna High Court Cr.Misc. No.38663 of 2012 (7) dt.23-09-2013 6/6 the Code which bard the exercise of jurisdiction provided under Sections 399 and 402 of the Code, rather it is well settled that Section 398 of the Criminal Procedure Code is only an ancillary to Section 397 read with Section 401 of the Criminal Procedure Code. The learned counsel for the petitioners, however, relied upon a decision reported in 1999(3) P.L.J.R., 267 (Harendra Kumar Vrs. The State of Bihar) where this Court while exercising jurisdiction under Section 398 of the Code remanded the case. However, there is nothing to show that Section 398 of the Code exclude the jurisdiction of the High Court to examine the power under Sections 399 and 401 of the Code if all the Sections get together, Section 398 of the Code is ancillary to Section 397 of the Code read with Sections 399 and 401 of the Code and, hence, when both the powers are there, the power can be exercised and if exercised the order can not be said to be without jurisdiction. Hence, I do not find any merit to interfere with the order, impugned. This application is rejected. (Gopal Prasad, J) SA/-