Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 36092 of 2012 ====================================================== Rana Shiv Kumar Singh @ Shivjee Singh, Son of Late Dinesh Singh, Resident of village – Malaypur Tola, P.S. – Barhat, Dist - Jamui .... .... Petitioner/s The State of Bihar Versus .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Sri Yogesh Chandra Verma, Sr. Advocate Mr. Prabhat Ranjan Singh, Advocate For the Opposite Party/s : Mr. Parmeshwer Mehta, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 2 08-05-2013 Heard. This is a petition for quashing the order dated 16.12.2008 passed by Sub-Divisional Judicial Magistrate, Jamui in Complaint Case No. 1402C of 2007 by which the learned court below took cognizance against the petitioner for the offence under Sections 376/511 of the Indian Penal Code as well as Sections 3(I) (II) (12) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the Act). The prosecution case as alleged by the informant, Reshmi Devi is that she is very poor and belongs to Scheduled Caste and used to do labour which is her only means of livelihood and she is working as labour under the road contract of the petitioner in which the accused no. 2 is also a petty contractor and accused no. 1 used to carry stone chips and it is alleged that both of them came to her house asked for water and when she went inside attempt was made to commit rape. On the complaint, the complainant was examined on oath and
Facts
Patna High Court Cr.Misc. No.36092 of 2012 (2) dt.08-05-2013 2 two witnesses in the complaint petition also examined on the basis of which cognizance has been taken for the offence under Sections 376/511 of the Indian Penal Code as well as Sections 3(I) (II) (12) of the Act.
Legal Reasoning
Hence, the question for consideration that whether this Court in exercise of the jurisdiction under Section 482 of the Cr.P.C. can go into the question to decide whether the complaint filed by the lady is forged and non-existant. However, taking into consideration the allegation that the complaint filed by one Reshmi Devi with specific assertion about the fact which constitutes an offence under Sections 376/511 of the Indian Penal Code for which a cognizance has been taken. It has not been Patna High Court Cr.Misc. No.36092 of 2012 (2) dt.08-05-2013 4 challenged that the allegation made does not make out an offence but the challenge is on the ground that a petition has been filed by a lady who is fake and no lady in the name of Reshmi Devi, wife of Lallan Ravidas is in existence and an affidavit has been flied by one Reshmi Devi, wife of Gaso Ravidas and one Mano Devi, wife of Lallan Ravidan as well as the Advocate. However, the case is at the stage of issuing process after taking cognizance and appearance of the accused. However, it appears that at this stage even before seeing attendance in the court below by the petitioner the petition filed by one Reshmi Devi, wife of Gaso Ravidas and Maya Devi and Advocate, has proceeded. However, there is no provision for such an enquiry about the defence of the accused at this stage on the basis of the affidavit. However, the petitioner is an accused and process issued after taking cognizance. There is nothing prescribed in the Code for an enquiry of the defence at this stage. The defence set up that the complainant is forged and fake lady and there is fraud in filing the petition can only be tested during the trial on the basis of the evidence led by both the parties and their respective cross-examination. However, any allegation of fraud is required to be established like a fact on due inquiry or investigation. There is nothing to show that if the allegation of fraud as defence is set up then the case to be investigated and inquired by this Court in exercise of the power under Section 482 Cr.P.C. However, the defence is that the lady set up is a fake lady and now that can well be tested in the trial and if the complainant not turned up then the trial court may proceed in accordance with law and may Patna High Court Cr.Misc. No.36092 of 2012 (2) dt.08-05-2013 5 dismissed the complaint and order for lodging case. However, this Court in exercise of power under Section 482 Cr.P.C. has no jurisdiction to look into the defence of the case in the light of the affidavit filed by some persons. However, the Court may take into consideration if the document filed is forged but an affidavit filed by the persons is not proper to take into account without testing the witness in cross- examination and moreover the affidavit cannot be treated as valid document. Hence, I do not find any merit to interfere with the order impugned and the petition is hereby dismissed. Kundan/- (Gopal Prasad, J)
Arguments
Learned counsel for the petitioner, however, prays for quashing of this order taking cognizance on the ground that the complainant is a fake lady, who has no existence and in this case a petition was filed vide Annexure – 2 by one Reshmi Devi that in her name some unknown lady under a forgery filed a complaint in the court of C.J.M., Jamui and she has not filed any complaint and she is the wife of Gaso Ravidas, resident of village – Churhait Tola, Naua Toli, P.S. – Sono, Dist. – Jamui and there is no lady like Reshmi Devi, wife of Lalan Ravidas. She has asserted that the name of the husband of the complainant is Gaso Ravidas and she is not the wife of Lalan Ravidas and filed petition to this effect in the case. One Maya Devi, wife of Lalan Ravidas filed an affidavit that there is no person in the village in the name of Reshmi Devi, wife of Lallan Ravidas so the case has been filed fraudulently and by forgery. Learned counsel for the petitioner, however, submits that notice was issued to Reshmi Devi by the S.D.J.M., Jamui but none turned up in this case. A petition has also been filed by the Advocate, Sri Rupendra Prasad Yadav that he signed on the complaint petition at the instance of Rajesh Kumar Singh, Advocate. Learned counsel for the petitioner, hence, has submitted that when an allegation has been made regarding the complaint being tainted with fraud and in the circumstances this Court only has jurisdiction under Section 482 Cr.P.C. to go into the question regarding fraud and Patna High Court Cr.Misc. No.36092 of 2012 (2) dt.08-05-2013 3 the trial court is not required to proceed with the trial in absence of real complainant. It has further been contended that the fraud vitiates everything and in such circumstances the prescribed procedures is not required to follow and court should not proceed with the case as it amounts to abuse of the process of the court to proceed with forged complaint. It has been asserted that Section 482 Cr.P.C. is the only remedy in cases of fraud because it amounts to an abuse of process of the court. Learned counsel for the State, however, contended that the procedure prescribed by the learned counsel for the petitioner is unknown to the Cr.P.C. and the Apex Court has held that the High Court should abstain from conducting a trial or mini trial in exercise of the power under Section 482 Cr.P.C. It has further been contended that finding of fact always with the trial court and this Court under Section 482 Cr.P.C. has no jurisdiction to look into the defence of the accused persons and hence, this Court has neither the jurisdiction to go into the enquiry and investigation of fraud as it amount to finding of fact as a mini trial.