Raja Kuaya v. P.S. Bihar, District
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.537 of 2011 ====================================================== Prabhu Chand Mistry @ Prabhu Chand Sharma, son of Late Tulsi Mistry, resident of Nabi Nagar, Paharpura, P.S.-Laheri, District-Nalanda at Biharsharif. .... .... Petitioner/s 1. The State Of Bihar, 2. Ajay Prasad, son of Late Jagdish Mahto, resident of village- Versus Ramchandarpur, P.S. Bihar, District-Nalanda, 3. Chhotai Mian alias Shamim Mian, son of Saleem Mian, resident of Bari Pahari, Sohsarai, P.S.Laheri, District-Nalanda & 4. Moohu Mian, son of Sarfuddin Mian, resident of Bari Pahari, P.S.- Sohsarai, P.S.-Laheri, District-Nalanda. .... .... Respondent/s ====================================================== with Criminal Miscellaneous No.1271 of 2010 ====================================================== Prabhuchand Mistry @ Prabhu Chand Sharma S/O Late Tulsi Mistry R/O Vill.- Nabi Nagar,Paharpur,P.S.-Laher,Dist.- Nalanda At Biharsharif. Versus .... .... Petitioner/s 1. The State Of Bihar 2. Ajay Prasad S/O Late Jagdish Mahto R/O Vill.- Ramchandrapur,P.S.- Bihar,Dist.- Nalanda. 3. Chotai Mian @ Shamim Mian S/O Salleem Mian R/O Bari Pahari, Sohsarai,P.S.-Laheri,Dist.- Nalanda. 4. Mochhu Mian S/O Sarfuddin Mian R/O Bari Pahari,P.O.- Sohsarai,P.S.- Laheri,Dist.- Nalanda. 5. Sahnaz Bano W/O Chotani Mian. .... .... Opposite Party/s ====================================================== with Criminal Miscellaneous No.28757 of 2010 ====================================================== Prabhu Chand Mistry @ Prabhu Chand Sharma, son of Late Tulsi Mistry, resident of village-Nabi Nagar, Paharpur, P.S.Laheri, District-Nalanda at Biharsharif. .... .... Petitioner/s 1. State Of Bihar & 2. Ajay Prasad, son of Late Jagdish Mahto, resident of village-Raja Kuaya, Versus P.S. Bihar, District-Nalanda.
Legal Reasoning
.... .... Opposite Party/s ====================================================== Appearance : (In CR. REV. No.537 of 2011) For the Petitioner/s : Mr. Shakti Kumar, Advocate. 2 For the Respondent/s : Mr. G.C.Sharma, APP. (In Cr.Misc. No.1271 of 2010) For the Petitioner/s : Mr. Shakti Kumar, Advocate. For the Opposite Party/s : Mr. Rabindra Prasad, APP. (In Cr.Misc. No.28757 of 2010) For the Petitioner/s : Mr. Shanti Kumar, Advocate. For the Opposite Party/s : Mr. R.B.Rai ‘Raman’APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 5 17-09-2013 Cr.Revision No.537 of 2011, Cr.Misc.No.1271 of 2010 Cr.Misc.No.28757 of 2010, all the three petitions as referred above have been filed by the petitioner relating to same cause bearing Complaint Case No.925C of 2002 filed by Ajay Prasad(Opposite Party No.2) being aggrieved by the order impugned passed by the successive courts at different stages, hence with the request of the parties, the matter has been heard
Decision
together and is being disposed of by a common order. (a) Cr.Revision No.537 of 2011 has been filed by the petitioner(proposed accused) against the order dated 14.09.2009 passed by Ist Additional Sessions Judge, Nalanda at Biharsharif in Cr.Revision No.42 of 2009 whereby and whereunder the learned Revisional Court had set aside the order dated 15.01.2009 passed by learned Chief Judicial Magistrate, Nalanda at Biharsharif dismissing the Complaint Case No.925C of 2002 under Section 203 of the Cr.P.C. (b) Cr.Misc.No.1271 of 2010 has been filed by the 3 petitioner against the order dated 16.10.2009 passed by the learned Chief Judicial Magistrate, Nalanda at Biharsharif whereby and whereunder he took cognizance of an offence punishable under Section 302/34 of the IPC and summoned the petitioner including others to face trial thereof. (c) Cr.Misc.No.28757 of 2010 has been filed by the petitioner against the order dated 27.04.2010 passed by the learned Chief Judicial Magistrate, Nalanda at Biharsharif in Complaint Case No.925C of 2002 committing the case to the court of Sessions. 2. It has been submitted on behalf of the petitioner that the learned Chief Judicial Magistrate, Nalanda at Biharsharif after taking into account the evidences produced by the complainant/Opposite Party No.2 during course of an enquiry under Section 202 of the Cr.P.C. found and held that no prima- facie case is made out and on account thereof, dismissed the complaint under Section 203 of the Cr.P.C. should not have been set aside by the learned Revisional Court because of the fact that there was no reason for the learned Revisional Court to differ from the conclusion arrived at by the learned Chief Judicial Magistrate, Nalanda at Biharsharif. Apart from this the material collected during course of an enquiry under Section 202 of the 4 Cr.P.C. speaks a lot justifying its dismissal. 3. It has further been submitted that the order of cognizance dated 16.10.2009 passed by the learned Chief Judicial Magistrate, Nalanda at Biharsharif happens to be bad in law on account of the fact that the same has been passed on erroneous consideration. It has further been submitted that there was no occasion for Lower Court to take cognizance of an offence while allowing the revision petition, the learned Revisional Court had not transmitted the matter to the learned Chief Judicial Magistrate, Nalanda at Biharsharif for further inquiry in terms of Section 398 of the Cr.P.C. In absence thereof, stepping ahead by way of taking cognizance by the learned Chief Judicial Magistrate, Nalanda at Biharsharif was absolutely wrong, illegal as well as without jurisdiction, hence is fit to be set aside. 4. It has further been submitted that process of commitment is not like behaving a post office. The stage of commitment is an enquiry whereunder it was incumbent upon the Magistrate to see whether commitment is justified or not that means to say, the materials available on the record did justify its trial by the court of Sessions. 5. So, in sum and substance, it has been submitted that the process chosen by the learned Lower Court at different stages 5 on its face appears to be contrary to the law and are accordingly, fit to be set aside. 6. At the other hand, the learned counsel for the Opposite Party No.2 submitted that all the three petitions have become infructuous in the background of the fact that Sessions Trial No.398 of 2010 has already been registered and the same is pending for framing of charge. The grievances whatsoever been raised, found redressable at this stage itself in case, the same is raised before the court concerned at the end of petitioner. 7. The learned Additional P.P. followed the line of action taken up by the learned counsel for the Opposite Party No.2. 8. With regard to death of Jagdish Mahto, a plumber, U.D. case was registered on the statement of Sahnaz Bano. At the other hand, the Opposite Party No.2, son of deceased had filed Complaint Case No.925C of 2002 on 15.11.2002 showing the date of occurrence as 09.11.2002 on which date the accused persons took away the deceased on the pretext of repairing of handpipe. The order dated 15.01.2009, whereby the complaint was dismissed in terms of Section 202 of the Cr.P.C. on its perusal clearly suggests that during course thereof, the learned Lower Court had crossed the level so identified for the purpose of appreciation of 6 evidence and on account thereof, having revoked during course of revisional jurisdiction, is found to be in accordance with law. Equally, the order of cognizance dated 16.10.2009 happens to be. At the stage of commitment, the Section itself prohibits minute scrutiny because of the fact that under new Code the purpose of commitment, in terms of an enquiry is to facilitate the accused with the police paper in terms of Sections 207, 208 of the Cr.P.C. 9. In Nupur Talwar v. Central Bureau of Investigation and Another as reported in (2012) 11 SCC 465 wherein it has been held:- “13. Whether an order passed by a Magistrate issuing process required reasons to be recorded, came to be examined by this Court again in Chief Controller of Imports & Exports v. Roshanlal Agarwal (2003) 4 SCC 139 wherein this Court concluded as below: (SCC pp. 145-46, para 9) “9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. (2000)3 SCC 745 and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722 it was held as follows: (Mohan Meakins Ltd. case(2000)3 SCC 745, SCC p. 749, para 6) The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to the accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.” 7 (emphasis supplied) 14. Recently, in Bhushan Kumar v. State (NCT of Delhi) (2012)5 SCC 424 the issue in hand was again considered. The observations of this Court recorded therein, are being placed below: (SCC p. 429, paras 12-14) “12. A „summons‟ is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in court. A person who is summoned is legally bound to appear before the court on the given date and time. Wilful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court. 13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued. 14. Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.” (emphasis supplied) 22. Section 209 is being extracted hereunder: “209. Commitment of case to Court of Session when offence is triable exclusively by it.—When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall— (a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been 8 made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.” In this background, it was essential for the Magistrate to highlight, for the perusal of the Court of Session, reasons which had weighed with her, in not accepting the closure report submitted by CBI, as also, for not acceding to the prayer made in the protest petition, for further investigation. It was also necessary to narrate what prompted the Magistrate to summon the complainant as an accused. For, it is not necessary that the Court of Session would have viewed the matter from the same perspective as the Magistrate. Obviously, the Court of Session would in the first instance, discharge the responsibility of determining whether charges have to be framed or not. Merely because reasons have been recorded, the Court of Session will have an opportunity to view the matter, in the manner of understanding of the Magistrate. If reasons had not been recorded, the Court of Session may have overlooked, what had been evaluated, ascertained and comprehended by the Magistrate. Of course, a Court of Session, on being seized of a matter after committal, being the competent court, as also, a court superior to the Magistrate, has to examine all the issues independently, within the four corners of law, without being influenced by the reasons recorded in the order issuing process. 60. The standard of scrutiny of the evidence which the Magistrate has to adopt for deciding whether or not to issue process under Section 204 CrPC in a case exclusively triable by the Sessions Court has been laid down by this Court in Kewal Krishan v. Suraj Bhan thus: (SCC p. 503, para 10) “10. … At the stage of Sections 203 and 204, Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202, Criminal Procedure Code, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is „sufficient ground for proceeding‟ against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The 9 standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in Ramesh Singh case that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session.” 10. Thus, I do not see any merit in these petitions, consequent thereupon, are rejected. However, petitioner will be at liberty to raise such plea in terms of Sections 227 and 228 of the Cr.P.C. and in case, the grievance is raised, the learned Lower Court will proceed independently in accordance with law without being influenced by the instant order. (Aditya Kumar Trivedi, J) Patna High Court, Dated 17th September,2013. Brajesh Kumar/AFR.