Baijnath Prasad & Ors. v. The State Of Bihar

learned counsel for the State.

2. This application has been filed for quashing the order dated 27.1.2011 passed in C-2/17/2004, Trial No.678 of 2010 by the Judicial Magistrate, Ist Class, Sitamarhi Sadar by which the court below has held that there is no such provision in Chapter XX of the Code of Criminal Procedure (hereinafter referred to as „the Code‟) alike Sections 239 and 245 of the Code where the Court can consider the petition of discharge filed by the petitioners.

3. Learned counsel for the petitioners submits that it is completely a malicious prosecution as the log loaded in truck bearing registration no. RJ-05H-2435 in question Patna High Court Cr.Misc. No.25697 of 2011 (12) dt.06-03-2013 2 meant for the inter state trade, no rule has been made under the Bihar Timber and Other Forest Produce (Regulation of Transit) Rules, 1973, was wrongly seized. Counsel for the petitioners submits that the aforesaid truck was earlier seized by the Forest Official and declared the seizure to be illegal and after that the said truck was released vide order dated

9.10.2003 but after release, the same day, the said truck was again seized on 10.10.2003 and ultimately the entire seizure by the Forest Officials was quashed by this Court vide order dated 11.1.2008 in C.W.J.C. No. 4782 of 2003 and C.W.J.C. No.4789 of 2003. He further submits that when the seizure of goods was quashed then whole prosecution case falls and as such the order of cognizance and subsequent proceeding is an abuse of the process of the Court. He further submits that he challenged the order of cognizance in Cr.W.J.C. No.433 of 2008 and this Court vide order dated 27.4.2009 refused to interfere with the order. However, the court has given the liberty are as follows: the prosecution against “ In these circumstances, I am of the opinion petitioners cannot be quashed at this stage. However, it is a fit case where the petitioners if file an application for bail before the court below concerned they shall be granted bail the same on such conditions as it thinks fit and proper. The petitioner, if so advised, may file a Patna High Court Cr.Misc. No.25697 of 2011 (12) dt.06-03-2013 3 petition for discharge before the concerned the grounds Magistrate by highlighting all the same shall be available considered and disposed of by the concerned Magistrate in accordance with law. them and With the aforesaid observation, this application stands disposed of.”

4. After disposal of that writ application the petitioners filed an application for discharge before the court below and made a prayer that there was no material against them to proceed with the trial by the court below. The court below on consideration of the material has held that there is no such provision for discharge in summons cases and refused to consider the case on merit which is under challenge before this Court.

5. Learned counsel for the petitioners filed I.A. No.66 of 2013 by which he has challenged whole prosecution submitting that there is no such material befroe the court below to take cognizance in view of the fact that this Court on successive occasion had held that the Government of Bihar has not framed any rule or regulation in connection with the inter State transit of woods and on considering this view this Court quashed the whole seizure. Counsel for the petitioner drawn attention to Section 258 of the Code deals with the summon case, provides, when the materials are not Patna High Court Cr.Misc. No.25697 of 2011 (12) dt.06-03-2013 4 available before the court, he will examine the matter, either he will pass an order of acquittal or discharge if the court feels there was no material against him.

6. Learned counsel for the State has submitted that the petitioners had already moved earlier and this Court had refused to quash the order of cognizance. In view of Section 362 of the Code, this Court cannot reopen the matter and review the order or cannot act as an appellate court. He has further submitted that Section 258 of the Code does not deal a situation when the case has been filed by way of complaint petition rather arising from police case.

7. Having considered the rival contentions of learned counsel for the parties in view of the order passed by this Court earlier in Cr.W.J.C. No.433 of 2008 this Court cannot reopen the issue with regard to taking cognizance in view of Section 362 of the Code which does not empower this Court either under inherent jurisdiction or otherwise to review the earlier order save and except some clerical error has crept in the order. As such argument with regard to quashing the order of cognizance consequently whole proceeding does not survive.

8. With regard to applicability of Section 258 of the Patna High Court Cr.Misc. No.25697 of 2011 (12) dt.06-03-2013 5 Code it is relevant to consider Section 258 of the Code which are as follows : “258. Power to stop proceedings in certain cases.-In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.” is made after

9. On careful reading of Section 258 of the Code it is apparently clear that this section finds within Chapter XX which deals summon cases. Specifically Section 258 of the Code deals with summons case instituted otherwise than upon complaint.

10. Learned counsel for the petitioners has put emphasis in this clause of Section 258 of the Code, “and in any other case release the accused, and such release shall have effect the case of discharge”. If Section 258 of the Code be read as a whole it gives only one meaning, in summons case arising from police report, the Court during trial, Magistrate for the reasons to be recorded, stop the proceeding at any stage without the pronouncement of any Patna High Court Cr.Misc. No.25697 of 2011 (12) dt.06-03-2013 6 judgment and where the proceeding has been stopped after the evidence of principal witness, the court may pronounce the judgment of acquittal and in any other case, release the accused which will have effect of discharge. There is no such provision which deals with the summons case arising from complaint petition. This is the wisdom of the legislature cannot be rewritten or supplemented with missing words by the Court. In different Chapter XIX of the code Sections239 and 245 of the Code deals with the discharge of the accused one arising from police case and second with complaint case. Learned counsel for the petitioner in support of his contention relied on the judgment of the Hon‟ble Supreme Court in the case of K.M. Mathew Vs. State oif Kerala and another, reported in A.I.R. 1992 SC 2206 to impress upon this Court but on reading of whole judgment it is clear Section 258 of the Code would also cover the case arising from complaint case leading taking of cognizance. The judgment does not deals with present issue as the judgment deals with altogether different issue. Accordingly, it is held that Section 258 of the Code does not deal with cases arising from complaint case. He further submits that as more than 10 years have passed and the trial Patna High Court Cr.Misc. No.25697 of 2011 (12) dt.06-03-2013 7 has not proceeded further from the stage of taking cognizance and as such continuation of criminal proceeding violates Article 21 of the Constitution of India. The case did not proceed further beyond taking cognizance as in major portion of time the case remained pending in this Court.

11. In view of above discussion, this application is disposed of with direction to the court below to expedite the trial and conclude the same within one year from the date of receipt/production of a copy of this order. It is made clear if any application under section 205 of the Code is filed the court below will pass order in accordance with law. Vinay/- (Shivaji Pandey, J)