Patna High Court
Case Details
Patna High Court Cr.Misc. No.20211 of 2012 (3) dt.03-05-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.20211 of 2012 ====================================================== Shaira Khatoon, W/O md. Atiul Rain, R/o Village- Itaharawa, P.S. Jaleshwar, District- Mahottari, Nepal. Versus .... .... Petitioner. 1. The State of Bihar. 2. Md. Monif Rain, S/O Md. Mangal Rain, R/O Village- Itaharwa, P.S. Jaleshwar, District- Mahottari, Nepal. .... .... Opposite Parties. ====================================================== Appearance : For the Petitioner. : Mr. Alok Kumar Jha, Advocate. Mr. Surendra Kishore Thakur, advocate. For the informant/o.p. no.2 : Mr. P. N. Shahi, Sr. Advocate. Mr. Patanjali Rishi, Advocate. Mr. Sanjeet Kumar Singh, Advocate. For the State : Mr. Suresh Prasad Singh, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 3
Legal Reasoning
and the evidence collected during investigation prima facie makes out an offence. At this stage the Magistrate can neither meticulously examined the evidence nor appreciate the evidence. It is well settle that the power under Section 482 Cr.P.C. is required to be exercised very sparingly in rarest of the rare case to prevent abuse of the process to secure justice and this should not be exercised to stifle the prosecution at the early stage. However applying the principle and taking into Patna High Court Cr.Misc. No.20211 of 2012 (3) dt.03-05-2013 consideration the F.I.R. and considering on bare perusal, it is apparent that the allegation made in F.I.R. and the evidence collected during investigation, it is clear that on the abatement of the petitioner, to take the jewellery to her naihar the victim went out of the house with jewellery and in way she met the accused person who kidnapped her on the motorcycle along with children. Her statement on her recovery as mentioned in para 49 of the case diary and statement under Section 164 Cr.P.C. that after kidnapping she was kept in captivity under the accused person and during the period she was sexually exploited and it was disclosed by the kidnapper that she has been sold by the petitioner for a consideration of Rs.20,000/-. Hence the allegation made and evidence collected itself prima facie makes out an offence. The submission that there is contradiction in the statement of the victim and the informant. However, at this stage of taking cognizance, the Magistrate is not required to meticulously examine the evidence nor has jurisdiction to reject the evidence. The exercise of jurisdiction under Section 482 Cr.P.C. is also required to sparingly used in rarest of rare case, taking into consideration the entire circumspection of the case and is not used to stifle the prosecution. Hence applying principle it is apparent the allegation made makes out an offence and the victim Patna High Court Cr.Misc. No.20211 of 2012 (3) dt.03-05-2013 has supported the occurrence. The Court at this stage cannot meticulously examine the fact about contradiction between statements of witness. Hence I do not find any merit to interfere with the impugned order at this stage. Accordingly, the petition is dismissed. However, the petitioner may raise issue at the stage of framing of the charge without being prejudice by the order. m.p. (Gopal Prasad, J)
Arguments
03-05-2013 Heard learned counsel for the petitioner, learned counsel for the informant as well as learned counsel for the State. This is an application for quashing the order dated 14.03.2012 passed by the Chief Judicial Magistrate, Sitamarhi in connection with Bela P.S. Case No. 27 of 2010 corresponding to Trial No. 655 of 2011 by which he has taken cognizance for offence under Section 366 of Indian Penal Code differing with the Final Report submitted by the police. The prosecution case as alleged that daughter-in-law of the informant used to talk with the petitioner Shaira Khatoon and the victim left the house along with jewelleries on abatement of the petitioner and on enquiry it was learnt from Muslim Rain, son Patna High Court Cr.Misc. No.20211 of 2012 (3) dt.03-05-2013 of Suleman Rain that Mubarak Hussain and Jamshaid Rain had took the victim lady and her son on motorcycle and they were seen going with victim and her son on a motorcycle to kidnap his daughter-in-law and his grand son. They brought her to Parihar and from there they went on bus toward Sitamarhi. F.I.R. was lodged and police started investigation and after investigation police submitted Final Form. On differing the Final Form submitted by the police learned Magistrate took cognizance against the petitioner on the ground that in para 1, 9, 15, 18, 19, 27, 41 and 49 of the case diary there is prima facie material against the petitioner and other accused persons. Learned counsel for the petitioner however challenged the order taking cognizance on the ground that Final Form has been submitted and learned Magistrate differing the Final Form has taken cognizance against the petitioner and other accused persons. It has further been contended that statement of the victim is in contradiction of the statement of the informant and there is no whisper that victim is residing at Sitamarhi and address of the informant is of Nepal and neither mother-in-law nor the witnesses stated the petitioner is abettor and none of the witnesses have supported the statement of the victim and order does not contained that witnesses have supported the prosecution case. It is further Patna High Court Cr.Misc. No.20211 of 2012 (3) dt.03-05-2013 submitted that in the F.I.R. there is mentioned that occurrence initiated at Nepal, so F.I.R. can be lodged at the place where the occurrence took place. Learned counsel for the State however, contends that statement of victim itself states that she left the house at the instance of the petitioner and in the way she met two boys and one girl and they have kidnapped her and took her to a place where she was subjected illegal treatment and they disclosed that they have purchased her on payment of Rs. 20,000/- to the petitioner. The victim in her statement before the police and statement under Section 164 Cr.P.C. recorded by the Magistrate during investigation has supported the case. It is well settle that at the stage of taking cognizance, the Magistrate is required to look into whether the allegations made