The State Of Bihar & Anr vs ORAL ORDER

Nageshwar Ram filed a complaint case as aforesaid where he has Patna High Court Cr.M isc. No.12 of 2011 (7) dt.21-02-2013 stated, he works in Bihar Rajya Anusuchit Jati Sahakarita Vikas Nigam on daily wages. On 16.9.2006 at about 6.00 P.M. while he was going with witness nos. 2 and 3 towards Mishrilal Sahni to take bicycle for purchasing medicine then just before the place of occurrence he slipped at cow dung. He went to the hand pump to wash his slipper and pant, in the meantime, Paspati Devi started hurling abuses by his caste name and used obnoxious statement against him which was objected whereupon she called her son Bachcha Sahni and others, told him to realize the cost of the hand pump, as it has become untouchable. The complainant repelled with the statement of being a public pump and everyone had rights to use the same. Allegation has been made for assaulting the complainant with leg and slipper and Raj Kumar Sahni took Rs. 500/- from his pocket, Niranjan Sahni snatched Gold chain worth Rs. 10,000/- and Sunil Sahni snatched Titan watch and tore his cloth and forced him to go nude and threatened for dire consequences.

4. The court below took cognizance vide order dated

5.1.2007 for offence under sections 323, 341, 379 of the Indian Penal Code and 3/4 of the SC/ST Act. The order dated 5.1.2007 was challenged before the Revisional Court in Cr. Rev. No. 22/2007 and the same was also dismissed whereupon both the Patna High Court Cr.M isc. No.12 of 2011 (7) dt.21-02-2013 orders were tested before this Court in Cr. Misc. No. 14330/2008 and this Court vide order dated 21.8.2009 remanded back the case to the court below for reconsideration and thereafter, the court below took cognizance by the impugned order.

5. Counsel for the petitioners has submitted, this time also the court below has committed an error of non-application of his mind, as the section that has been quoted as section 3 (x) which is not in the statute. Another point has been raised about previous litigation against them, as Niranjan Sahni petitioner No. 5, filed a case against the informant and one of the witnesses, Mishrilal Sahni and that is the reason for filing of the present case. It is a malicious prosecution covered by the judgment of the Hon’ble Supreme Court which is reported in AIR 1992 SC 604 ‘para 108’ (State of Haryana v. Bhajan Lal).

6. Counsel for the petitioners further submitted a question was asked to the witness as to whether there was a previous enmity which was denied by them in the evidence which is completely a false statement in view of the statement made herein above. He further submits that omnibus allegation has been made against the other petitioners and no offence is made out against some of the petitioners even if the whole statement made in the FIR be accepted to be true. He further submits, even the Patna High Court Cr.M isc. No.12 of 2011 (7) dt.21-02-2013 persons who have shown as witness have sworn affidavit before the Court stating that they were not witness to the incident.

7. Counsel for the opposite party submits, at the stage of taking cognizance only prima facie case has to be seen by the Court. The statements made in F.I.R. disclose the offence under the SC/ST Act including under the Penal Code. He further submits if petitioners have any grievance with regard to mentioning of some sections, they can very well take steps at the appropriate stage and the clerical error cannot be a ground for interfering with the order of cognizance at this stage.

8. Having considered the rival contentions of the parties, so far the section which has been mentioned in the order sheet it appears to be a clerical mistake. Another point, counsel for the petitioners has submitted, with regard to previous enmity, is double edged sword, cut both ways and can be seen at different stage, hence enmity itself cannot be ground for coming to a conclusion of malicious prosecution at this stage. With regard to statement of the witness that did not have any enmity with the petitioners, cannot be a ground for interfering with the order of cognizance at this stage. Petitioner can take this point at later stage.

9. So far the point of general omnibus allegation is Patna High Court Cr.M isc. No.12 of 2011 (7) dt.21-02-2013 concerned that may be raised at time of framing of charge.

10. This Court does not find any error in the order of cognizance. Accordingly, this petition is dismissed with liberty to raise all points before the court below at the appropriate stage. (Shivaji Pandey, J) Mahesh/-