Patna High Court · 2010
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.1046 of 2011 ====================================================== Sister Daya @ Sister M. Daya D/O Mr. Joseph, Resident of Notre Dame Convent, Munger, Presently Reisiding at Mariya Bhawan, Albert Road, P.S- East Colony, Jamalpur, District- Munger. Versus .... .... Petitioner/s 1. The State Of Bihar 2. Sri Bharat Yadav S/O Shri Parmeshwar Yadav, Resident of Mohalla- Jamalpur Dih, P.S- Jamalpur, District- Munger. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Shailendra Kumar Sinha, with Mr. Raj Kumar For the State of Bihar : Mr. Sanjay Kumar, APP For the Opp. Party No.2 : Mr. Dhirendra Nath Jha ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 4 22-10-2013 Heard the parties. 2. The petitioner has filed the present application under Section 482 of the Code of Criminal Procedure, 1973 (in short “Cr. P. C.”) invoking inherent powers of this Court for quashing the order dated 06.04.2009 passed in Complaint Case No. 393C of 2003 by the learned Judicial Magistrate, 1st Class, Munger, whereby cognizance has been taken for the offences under Section 504 of the Indian Penal Code as also under Sections 192, 193 and 196 of Bihar Municipal Act, 2007and summons has been ordered to be issued against the accused persons including the petitioner. She has further prayed for quashing of the order dated 16th September 2010 passed in Cr. Revision No. 205 of 2009 by the learned Additional Sessions Judge, Fast Track Court No. V, Munger, whereby aforesaid revision application filed on behalf of the petitioner has been dismissed and the order dated 06.04.2009
Legal Reasoning
passed by the learned Magistrate has been affirmed. Patna High Court Cr.Misc. No.1046 of 2011 (4) dt.22-10-2013 2/5 3. It is admitted case of the parties that opposite party no. 2 filed a petition of complaint in the Court of learned Chief Judicial Magistrate, Munger, giving rise to Complaint Case No. 393C of 2003 vide Annexure-1. In that petition of complaint, the petitioner besides one more person was arrayed in the category of accused. The complainant was examined on S.A. and during the course of enquiry under Section 202 Cr. P.C., four witnesses were produced on behalf of the complainant- opposite party no.2. However, on examination of the materials available on record, the learned Judicial Magistrate, 1st Class, Munger, in exercise of his powers under Section 203 Cr. P.C. dismissed the aforesaid petition of complaint by order dated 04.08.2008 as according to him, there was no sufficient ground for proceeding against the accused persons. The complainant- opposite Party No. 2, being aggrieved by the aforesaid order, preferred Cr. Revision No. 281 of 2008 before the learned Sessions Judge, Munger, which was finally disposed of by the judgment and order dated 17.11.2008 vide Annexure-3 to the supplementary affidavit. By the aforesaid order dated 17.11.2008 learned Sessions Judge, Munger set aside the order dated 04.08.2008 passed by the learned Judicial Magistrate and remitted the matter back with a direction to hold further enquiry in terms of Section 398 Cr. P.C.
Legal Reasoning
4. Learned counsel for the petitioner has submitted that despite specific orders and directions issued by the learned Sessions Judge, Munger and despite mandate of Section 398 Cr. P. C., no further enquiry was conducted by the learned Judicial Magistrate, 1st Class, Muner, yet by the impugned order dated 06.04.2009 on the same set of facts, he has taken cognizance against the petitioner besides others for the offences indicated Patna High Court Cr.Misc. No.1046 of 2011 (4) dt.22-10-2013 3/5 above. He next submits that the petitioner, being aggrieved by the aforesaid order, preferred Cr. Revision No. 205 of 2009, which has been dismissed by the impugned revisional order dated 16.09.2010 passed by the learned Additional Sessions Judge, Fast Track Court No. V, Munger. It is contended that the impugned order taking cognizance by the learned Magistrate is contrary to the direction of the learned Sessions Judge, Munger passed earlier and, therefore, the order impugned is not sustainable in the eye of law. According to him, the learned revisional court below has not considered the issues raised on behalf of the petitioner in its proper perspective and has dismissed the revision application mechanically by the impugned revisional order dated 16.09.2010. 5. Learned Additional Public Prosecutor appearing on behalf of the State and the learned counsel appearing on behalf of the opposite party no. 2 has opposed the prayer made on behalf of the petitioner, but they have not been able to show that any further enquiry was made by the learned Magistrate before passing the impugned order taking cognizance against the accused persons including the petitioner. It is simply contended on behalf of the opposite party no.2 that further enquiry was not at all required and the learned Magistrate was justified in passing the impugned order on the same set of facts for the purpose of taking cognizance against the accused persons. 6. After having heard the parties, this Court is of the opinion that the order taking cognizance as also the order passed by the learned revisional court below are not sustainable in law as mandate of Section 398 Cr. P. C. has not been complied with by the learned Magistrate while taking cognizance against the petitioner besides others. Admittedly, on the basis of the complaint Patna High Court Cr.Misc. No.1046 of 2011 (4) dt.22-10-2013 4/5 petition filed on behalf of the opposite party no. 2 and after holding enquiry in terms of Section 202 Cr. P.C., the petition of complaint filed on behalf of the opposite party no. 2 was dismissed in terms of Section 203 Cr. P. C. by the order dated 04.08.2008. Learned Sessions Judge, Munger on revision petition filed on behalf of the opposite party no.2 had remitted the matter back to the learned Magistrate for passing a fresh order, but after holding further enquiry. Admittedly, that has not been done in the present case. Section 398 Cr. P. C. mandates that while exercising power of revision under Section 397 Cr. P. C., the High Court or the Court of Sessions may direct the learned Chief Judicial Magistrate, by himself or by any of the Magistrate subordinate to him to make further enquiry into any complaint, which has been dismissed under Section 203 Cr. P. C. or under sub-Section (4) of Section 204 Cr. P.C. Admittedly, the petition of complaint filed on behalf of the opposite party no.2 was dismissed earlier under Section 203 Cr. P.C. Therefore, the learned Sessions Judge, Munger was justified in directing for holding further enquiry. Consequently, the learned Magistrate was obliged to hold further enquiry in terms of Section 398 Cr. P.C. and only thereafter he could have taken cognizance on the basis of the materials available on record against the accused persons. Learned Judicial Magistrate has failed to comply the direction of the learned Sessions Judge and has further failed to comply the mandate of Section 398 Cr. P.C., yet he has taken cognizance against the accused persons by the impugned order dated 02.04.2009, which has been mechanically affirmed by the impugned revisional order dated 16.09.2010, and therefore the orders impugned are not sustainable in law. Patna High Court Cr.Misc. No.1046 of 2011 (4) dt.22-10-2013 5/5 7. For the reasons recorded above, the impugned dated 06.04.2009 passed in Complaint Case No. 393C of 2003 by the learned Judicial Magistrate, 1st Class, Munger, as also the revisional order dated 16th September 2010 passed in Cr. Revision No. 205 of 2009 by the learned Additional Sessions Judge, Fast Track Court No. V, Munger are hereby quashed and the matter is remitted back to the learned Chief Judicial Magistrate, Munger with a direction to make further enquiry and proceed in the matter afresh further strictly in accordance with law. 8. The application stands allowed to the extent indicated above, but with the observations and directions made above. BTiwary/- (Birendra Prasad Verma, J)