Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.43536 of 2010 ====================================================== Brijesh Kumar @ Biresh Kumar .... .... Petitioner/s The State Of Bihar Versus .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 4 22-11-2013 The present application has been filed for quashing of the order dated 24.09.2010 passed by learned JM, 1st Class, Patna in Complaint Case No. 1346(C) of 2010 whereby bailable warrant has been issued against the petitioner after finding a prima facie case for the offences punishable under Section 307 of the IPC. It is alleged by the complainant that during incarceration in Beur Central Jail, Patna, the complainant was admitted in the jail hospital since 26.02.2009 and he used to take medicine supplied by the jail hospital. The petitioner, during the said period, stopped the supply of insulin from 02.12.2009 to 07.12.2009, as a result of which the complainant suffered from hyperglycemic coma, which has been alleged to be an attempt by the petitioner to kill the complainant.
Legal Reasoning
Magistrate has taken cognizance after finding a prima facie case. It appears that learned Magistrate has not applied his judicial mind while passing the order of cognizance which has been deprecated by the Apex Court in the case of Pepsi Foods Ltd. Patna High Court Cr.Misc. No.43536 of 2010 (4) dt.22-11-2013 3/5 Vs. Special Judicial Magistrate, reported in (1998) 5 SCC, 749. Paragraph no. 28 of the judgment reads as follows:- “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” It appears that learned Magistrate failed to look into the accusation made in the complaint which does not contain any document to suggest that actually supply of insulin was stopped or the complainant actually suffered from hyperglycemic coma. Considering the rival submissions of the parties, it appears that the accusation does not make out the case under Section 307 of the IPC and it appears that malicious accusation has been ventilated through a belated complaint. The quashing of such prosecution is permissible in view of the ratio as laid in the Patna High Court Cr.Misc. No.43536 of 2010 (4) dt.22-11-2013 4/5 case of State of Haryana Vs. Bhajan Lal as reported in 1992 Supp (1) Supreme Court Cases 335. Para 102 of the said judgment reads as follows:- “In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. in 2. Where the allegations the First if any, Information Report and other materials, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the Patna High Court Cr.Misc. No.43536 of 2010 (4) dt.22-11-2013 5/5 basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is instituted with an ulterior motive for maliciously wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” In view of the aforesaid discussion, allowing the present prosecution to continue will be an abuse of process of the Court. Hence to secure the ends of Justice, the order of cognizance dated 24.09.2010 passed in Complaint Case No. 1346(C) of 2010 including the entire prosecution of the aforesaid case with regard to the petitioner is hereby quashed. Accordingly, the present application is allowed. (Dinesh Kumar Singh, J) Amrendra/-
Arguments
It is submitted by learned counsel for the petitioner that petitioner was a lab technician posted in Beur Jail hospital and he has no concern with the supply or stoppage of supply of insulin. Patna High Court Cr.Misc. No.43536 of 2010 (4) dt.22-11-2013 2/5 Moreover, the complainant has not brought anything on record to suggest that supply of insulin was stopped by this petitioner or whether the supply was actually stopped or whether the complainant suffered from hyperglycemic coma due to non-supply of insulin. For the occurrence of 02.12.2009 to 07.12.2009, the complaint was filed on 18.05.2010, which suggests the malicious nature of the accusation. It is further submitted that petitioner was assaulted by one Shyam Babu Gope and his friends who were also incarcerating in the Beur Central Jail, Patna due to which the petitioner was on leave from 26.11.2009 to 07.12.2009, when the petitioner filed Beur P.S. Case No. 193 of 2009 on 25.11.2009 against the aforesaid two accused persons. Hence, as a retaliatory measure and also in order to protect the aforesaid two accused persons, the complainant, having criminal antecedents, lodged this case against the petitioner. Learned counsel for the complainant submits that though he has no documentary proof with regard to accusation of non-supply of insulin made by the petitioner, but, learned