Patna High Court - Orders
Ratneshwar Chakma vs The State Of Bihar Through Director ... on 23 July, 2019
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.889 of 2019
Arising Out of PS. Case No.-20 Year-2019 Thana- SC/ST District- Gaya
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1. Ratneshwar Chakma son of Sri Santi Kumar Chakma, Resident of Buddhist
Thai - Bharat Society, Village - Mastipur, South of Main Temple, P.S.- Bodh
Gaya, District- Gaya
2. Chhota Bhante @ Phra Bhodhinandhamunee son of Late Sri Loh. Permanent
resident of Address 7, Village No. 4, P.S. - Chom Phra, District - Chom Phra,
Surin Province (Thailand) and also at Buddhist Thai-Bharat Society, Village
- Mastipur, South of Main Temple, P.S.- Bodh Gaya, District- Gaya.
3. A.C. Lama @ Acharya Chodub Lama son of Late Sri Daba Lama, Resident
of Buddhist Thai-Bharat Society, Village - Mastipur, South of Main Temple,
P.S.- Bodh Gaya, District- Gaya.
... ... Petitioner/s
Versus
1. The State of Bihar through Director General of Police, Bihar, Patna
2. The Director General of Police, Bihar, Patna
3. The Superintendent of Police, Gaya, District- Gaya
4. The Deputy Superintendent of Police, Bodh Gaya, District- Gaya
5. The Officer-in-Charge, Gaya Sadar SC/ST Police Station, District- Gaya
6. The Investigation Officer of Gaya SC/ST P.S. Case no. 20/2019, District-
Gaya
7. Rina Devi wife of Ravi Kumar, resident of Mohalla-Bairagi, P.S.-Delha,
District- Gaya
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rajendra Narain, Sr. Advocate
: Mr. Rahul Bhandari, Advocate
: Mr.Nishant Kumar Jha, Advocate
: Mr. Vivek Anand Amritesh, Advocate
For the State : Mr. Md. Nadim Seraj, GP-5
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
4 23-07-2019I.A. No.01 of 2019 Mr. Rajendra Narain, learned senior counsel for the petitioners seeks leave to withdraw this interlocutory application with liberty to assail the validity of the first information report Patna High Court CR. WJC No.889 of 2019(4) dt.23-07-2019 2/4 on the basis of illegal order passed by the Court of Magistrate under Section 156(3) of the Code of Criminal Procedure.
Leave is granted.
The interlocutory application is disposed of.
Cr.W.J.C. No.889 of 2019 It is submitted by Mr. Rajendra Narain, learned senior counsel appearing for the petitioners that the first information report (for short 'FIR) of Gaya SC/ST P.S. Case No.20 of 2019 dated 18.04.2019 has been instituted under Sections 3(1)(r)(s) (w)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (for short 'SC/ST Act') and 323, 341, 506, 376, 377 and 511 read with 34 of the Indian Penal Code and also Section 6 of the Protection of Children from Sexual Offences Act, 2012 pursuant to a direction made by the learned Special Judge, SC/ST Act, Gaya in Complaint Case No.132 of 2018 in exercise of powers conferred under Section 156(3) of the Code of Criminal Procedure (for short 'Cr.P.C.'). The order under Section 156(3) of the Cr.P.C. was passed in complete breach of the directions given by the Supreme Court in the matter of Mrs. Priyanka Srivastava & Anr. vs. State of U.P. & Ors since reported in 2015(3) PLJR 78(SC) wherein noticing the misuse of Section 156(3) Cr.P.C., the Supreme Patna High Court CR. WJC No.889 of 2019(4) dt.23-07-2019 3/4 Court has held that a stage has come where Section 156(3) applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of juridiction of the Magistrate. The court further held that in appropriate application, the Magistrate would be advised to verify the truth. Having said so the apex court has held that there has to be prior applications under Sections 154(1) and 154(3) while filing an application under Section 156(3) of the Cr.P.C. and both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed.
He submitted that in the instant case, the learned Magistrate has exercised the power conferred under Section 156(3) of the Cr.P.C. without there being any affidavit to support the contention that prior applications under Section 154(1) of the Cr.P.C. and then Section 154(3) Cr.P.C. and the police had failed to register the FIR. He contended that in view of complete breach of the ratio laid down by the Supreme Court in Priyanka Srivastava (supra), the FIR in question is liable to be quashed.
On the other hand, learned counsel appearing for the State submitted that he would seek instructions into the matter and, if so advised, file a counter affidavit. He has sought for an adjournment for four weeks.
Patna High Court CR. WJC No.889 of 2019(4) dt.23-07-2019 4/4 Having heard the parties, the petitioners are directed to implead the complainant/informant of the case as respondent no.7 in the course of the day.
Issue notice to the newly added respondent no.7 both by registered cover with A/D as well as ordinary process for which requisites etc. must be filed within one week failing the application shall stand rejected without further reference to a Bench.
List the case immediately after service report is received.
In the mean time, the State may also file its counter affidavit.
(Ashwani Kumar Singh, J) Md. S/-
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