Patna High Court - Orders
Pramod Rajpati & Ors. vs State Of Bihar & Anr on 19 September, 2013
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.4984 of 2013
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1. Pramod Rajpati son of late Shiv Narayan Sah.
2. Most. Rajpati Devi, wife of late Shiv Narayan Sah.
3. Smt. Durga Devi, wife of Pramod Rajpati.
All residents of Mohalla Navneet Nagar, Rukunpura, P.S. Rupaspur, Distt.
Patna.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Baidyanath Sharma son of Jangi Sharma resident of Mohalla Navneet
Nagar, Rukunpura, P.S. Rupaspur, Distt. Patna.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s :
For the Opposite Party/s : Mr. Pranav Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL ORDER
4 19-09-2013Heard learned counsel for the petitioners, learned A.P.P. for the State and learned counsel appearing for the opposite party no. 2.
2. The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') seeks quashing of the order dated 29.01.2011 passed by the A.C.J.M., Danapur by which cognizance has been taken under Sections 341/323/354/307/427/504/34 of the Indian Penal Code as well as the order dated 29.10.2012 passed by the Judicial Magistrate 1st Class, Danapur committing the case to the Court of Patna High Court Cr.Misc. No.4984 of 2013 (4) dt.19-09-2013 2/9 Sessions for trial in connection with Rupaspur P.S. Case No. 46 of 2009/ G.R. No. 762 of 2009.
3. However, learned counsel for the petitioners submits that he is confining his prayer in the present application to the portion of the order by which cognizance has been taken under Section 307 of the Indian Penal Code also due to which the matter has been committed to the Court of Sessions for trial.
4. The prosecution story in brief is that on 25.03.2009 when the informant was sitting in his shop, the petitioner no. 1, who is his neighbour, came out of his house along with his motorcycle and on seeing the informant, he started abusing him. When the informant objected to the same, it is alleged that the petitioner no. 2 came out of the house with a bucket full of water and threw it on the cement bags kept in the shop of the informant due to which 40 such bags were destroyed. Upon cry being raised, the informant's two daughters came out and the petitioner no. 1 assaulted them with iron rod with the intention to kill due to which they received injury on their head and body. The incident was witnessed by the neighbours and the reason mentioned is that a day earlier on the orders of the Anchal Adhikari, Danapur the land was being measured and demarcated by the government 'Amin' who was chased away by the petitioner no. 1 and his family Patna High Court Cr.Misc. No.4984 of 2013 (4) dt.19-09-2013 3/9 members.
5. Learned counsel for the petitioners submits that the F.I.R. was lodged only to get over the adverse consequences of the informant's act against the petitioners which had occurred at 6:00 a.m. on 25.03.2009 i.e., one hour prior to the incident alleged in the present F.I.R. in which it is alleged that the informant and others had vandalized the office of the petitioner no. 1 for which Rupaspur P.S. Case No. 47 of 2009 was instituted under Sections 341/323/354/307/379/427/504/34 of the Indian Penal Code. Learned counsel submits that much prior to filing of the present case on 25.03.2004, the petitioner no. 1 had filed complaint before the police against the informant and his sons as far back as on 27.11.2008 and 25.01.2009 and also before the Sub-Divisional Magistrate, Danapur on 04.02.2009. The petitioner no. 1 had also made complaint to the police on 24.03.2009 against the informant, his sons and other family members in which the petitioner had to move the High Court in Cr.W.J.C. No. 278 of 2009 which finally resulted in institution of Rupaspur P.S. Case No. 53 of 2009. It is further submitted that the informant has no shop and thus the question of keeping 40 bags of cement, besides being false, the further allegation that the same were destroyed by one or two buckets of water is clearly an exaggeration not fit to be believed. Patna High Court Cr.Misc. No.4984 of 2013 (4) dt.19-09-2013 4/9 Learned counsel submits that though the present case is totally false and fabricated but still the police submitted chargesheet against the petitioners under Sections 341/323/354/427/504/34 of the Indian Penal Code. It is submitted that the Court below without any application of mind, though relying upon the chrgesheet, has taken cognizance under the sections mentioned in the chargesheet and also Section 307 of the Indian Penal Code, which is not justified either on facts or in law. Learned counsel submits that from the plain reading of the F.I.R. it is apparent that the incident, even as alleged, happened on the spur of the moment. It is further submitted that though it has been alleged that the petitioners attacked the daughters of the informant on the head with iron rod, it is not explained in the F.I.R. as to how and from where the petitioner no.1 got the iron rod when at the very beginning it is mentioned that the petitioner no. 1 while taking out his motorcycle from his house upon seeing the informant had abused him leading to the said incident. It is further submitted that despite there being allegation in the F.I.R. that the daughters of the informant were attacked and assaulted with blows on the head, as per the injury reports, copies of which have been made Annexure- 4 series in the application, there is no injury on the head except for one swelling and abrasion below the left eye on one of the injured. Patna High Court Cr.Misc. No.4984 of 2013 (4) dt.19-09-2013 5/9 Further, there is only pain and swelling over the bodies of the injured without any specific injury and the Doctor has opined that all are simple in nature caused by hard and blunt object. Learned counsel submits that as per the ingredients of Section 307 of the Indian Penal Code, there has to be prior intention or knowledge that the act could result in death. In the present case from the plain reading of the F.I.R. itself it is apparent that the incident occurred on the spur of the moment and further that the petitioner no. 1, even if it is taken to be true, for the sake of argument without accepting the same, assaulted the daughters of the informant with iron rod, no blow having been made on any vital part and also not repeated, cannot be considered to have been made with the intention to kill. Learned counsel submits that due to this even the police had not submitted chargesheet under Section 307 of the Indian Penal Code as no material had come during the course of investigation. It is submitted that the Court below has thus, without applying its judicial mind, in a routine and casual manner taken cognizance which is not the scheme of things under the Code or as contemplated in law.
6. Learned A.P.P. for the State opposes the application and submits that once the Magistrate has taken cognizance, the petitioners ought to face trial in which they would Patna High Court Cr.Misc. No.4984 of 2013 (4) dt.19-09-2013 6/9 get full opportunity to place of their defence.
7. Learned counsel appearing for the opposite party no. 2 submits that the Courts have held that it is not essential that bodily injuries capable of causing death should have been inflicted for a conviction under Section 307 of the Indian Penal Code. It has only to be seen that there was intention coupled with some overt act in execution thereof. For the said proposition, he relies upon the decisions of the Hon'ble Supreme Court in the case of Hari Mohan Mandal v. State of Jharkhand reported in 2004 (3) PLJR (SC) 7 and in the case of Bipin Bihari v. State of M.P. reported in 2006 (4) PLJR (SC) 199. Learned counsel submits that this Court has also held that cognizance is taken of the offence and not under a particular section and even if prima face case is made out, cognizance cannot be quashed. For such proposition, he relies upon a decision of this Court in the case of Mohd. Mokhtar Ahmad v. State of Bihar reported in 1995 (2) PLJR 149, the relevant being at paragraphs- 11 and 13. It is further submitted that the power to quash an F.I.R. or complaint should be used sparingly and the trial or enquiry should not be quashed at its very inception unless no offence is made out from the entire F.I.R./complaint and the investigation thereupon. It is submitted that the parameters laid down by the Courts for quashing of the Patna High Court Cr.Misc. No.4984 of 2013 (4) dt.19-09-2013 7/9 F.I.R. or the complaint are clear-cut and the present case does not fall under any of the categories enumerated therein. For such proposition, learned counsel has relied upon the decision of this Court in the case Haresh Kumar Singh v. The Union of India reported in 1996 (2) All PLR 1307.
8. Learned counsel for the petitioners, by way of reply, submits that the decisions relied upon by the learned counsel for the opposite party no. 2 in the case of Hari Mohan Mandal (supra) as well as Bipin Bihari (supra) are clearly distinguishable on facts. It is submitted that in the first case the allegation was of inflicting of knife blow on the head and on the eye whereas in the second case it was of firing with a gun which had hit the right calf of the complainant as a consequences of which the flesh of that region was a ripped open. It is submitted that the present case cannot be even remotely compared to the facts of those cases inasmuch as here only the allegation is that the daughters of the informant were hit by iron rod by the petitioner no. 1 which is belied from the injury report and also from the F.I.R. itself in which there is no allegation of any repeated blow on any vital part of the body muchless any injury caused on such vital part. Learned counsel further submits that the decisions relied upon by learned counsel for the opposite party no. 2 in the case of Patna High Court Cr.Misc. No.4984 of 2013 (4) dt.19-09-2013 8/9 Haresh Kumar Singh (supra) and Mohd. Mokhtar Ahmad (supra) are not applicable in the facts and circumstances of the case since they have expounded the law which is not in dispute. The Courts had decided with regard to quashing of the F.I.R. or the complaint, which is not the case at hand, and also with regard to making out a prima facie case for taking of cognizance. It is submitted that not only prima facie but even upon proper investigation, from the materials coming before the Court, the taking of cognizance under Section 307 of the Indian Penal Code cannot be justified either on facts or in law.
9. Upon considering the rival contentions, this Court finds substance in the submissions of learned counsel for the petitioners. From the plain reading of the F.I.R. as well as upon going thorough the injury reports of all the four persons who are alleged to have been injured, this Court, at this stage, cannot but hold that the ingredients required for offence under Section 307 of the Indian Penal Code are not made out. Accordingly, the order dated 29.01.2011 to the extent of taking cognizance under Section 307 of the Indian Penal Code is concerned, is set aside. As a corollary, the order dated 29.10.2012 committing the case to the Court of Sessions is also set aside. The trial shall continue in the court of any competent Judicial Magistrate under Sections Patna High Court Cr.Misc. No.4984 of 2013 (4) dt.19-09-2013 9/9 341/323/354/427/504/34 of the Indian Penal Code. This Court would only like to observe that the prosecution and the informant are not left remediless in the matter since even during the course of trial if materials come justifying addition of any graver section(s), the Court is competent under the provisions of the Code to take care of such a situation.
10. The application stands allowed to the extent indicated above.
(Ahsanuddin Amanullah, J.) Anjani/-