Patna High Court
Satya Narayan Singh vs State Of Bihar & Anr on 13 May, 2010
Author: Rakesh Kumar
Bench: Rakesh Kumar
Criminal Miscellaneous No.31250 OF 1999
In the matter of an application under Section 482
of the Code of Criminal Procedure
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SATYA NARAYAN SINGH, Son of Late
Dwarika Prasad Singh, resident of Village- Kaithi,
Police Station-Chautham, District-Khagaria , at
present Member of Bihar Legislative Assembly,
Chautham Assembly Constituency--- Petitioner
Versus
1. THE STATE OF BIHAR
2. Smt. Saraswati Devi, wife of Gajadhar Singh,
resident of Village-Bankipur, Machhariyawa, P.S.
Fatuha, District-Patna, at present residing in
A.N.M. Health Sub Centre, Bobil, P.S. Beldour,
District-Khagaria ------------ Opp.Parties.
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For the petitioner: S/Sri Yogesh Chandra Verma,
Sr. Advocate
Ram Sumiran Rai, Advocate.
For the State: Sri A.M.P. Mehta, A.P.P.
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PRESENT
THE HON'BLE MR. JUSTICE RAKESH KUMAR
Rakesh Kumar, J.The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure , has prayed for quashing of the order dated 8.6.1999 passed by the learned Chief Judicial Magistrate, Khagaria in Complaint Case No.266 ( C) of 1999 . By the said order, the learned Chief Judicial Magistrate, Khagaria has taken cognizance of offences under Sections 323, 342, 354, 370 and 352/34 of the Indian Penal Code. The petitioner has also prayed for quashing of the order dated 16.11.1999, by the learned Sub Divisional Judicial Magistrate, Khagaria whereby after conducting enquiry he had directed for issuance of summons to 2 the accused persons for facing the trial.
2. Short fact of the case is that Opp.Party no.2, namely, Saraswati Devi, who was A.N.M., Health Sub Centre, Bobil, Beldour filed a complaint in the court of the learned Chief Judicial Magistrate, Khagaria vide Complaint Case No.266(C) of 1999. It was disclosed in the complaint petition that on 4.6.1999 at about 12.30 P.M., while she along with her daughter was going to her office and while they reached near the south turning of the High School, Beldour , she noticed a Commandar Jeep in a standing position and petitioner with other two accused persons were sitting inside the Jeep. It was alleged by the complainant that while she reached near the jeep, the petitioner stopped her and inquired from her as to where she was going and thereafter he started abusing the complainant and asked as to why she is staying in the Panchayat Bhawan. The complainant tried to convince the petitioner and said that she will vacate the Panchayat Bhawan after the building of Health Centre, which was destroyed in fire, is renovated. Thereafter, the petitioner got down from the vehicle and after catching anchal of sari of the complainant; he started dragging her and also started assaulting the complainant. In the meanwhile, other two accused persons, who were sitting on the back side of the Jeep, also got down and requested the petitioner to leave the matter to them. Thereafter, the petitioner left the complainant and sat in the Jeep. The other two accused persons subsequently forcibly dragged the complainant and her daughter towards Jeep, they assaulted and started misbehaving with them. It was also alleged that 3 accused persons forcibly took the golden chain of the complainant, which was for an amount of Rs.5000/-. The chain was forcibly taken by the accused no.2, namely, Ashok Paswan , who is not before this Court and accused no.3 Guneshwar Sharma forcibly took purse of the complainant, containing Rs.750/-. While the complainant and her daughter started crying and raised hulla , many persons from the road side arrived there and having seen them, the accused persons left the place of occurrence by their vehicle.
3. After the complaint petition was filed, by an order dated 8.6.1999, the learned Chief Judicial Magistrate took cognizance of the offence and directed for transferring the case records to the Court of Sri N. Pandit , learned Sub Divisional Judicial Magistrate under Section 192 (1) of the Code of Criminal Procedure for enquiry and disposal of the case. On receipt of the case records in the court of the learned Sub Divisional Judicial Magistrate, the complainant was examined on S.A. on 14.6.1999 and thereafter three witnesses were examined in support of the complainant at the enquiry stage. After being fully satisfied that there were sufficient materials to proceed against the petitioner, the learned Sub Divisional Judicial Magistrate, by its order dated 16.11.1999 directed for issuance of summons for securing attendance of accused persons including the petitioner to face the trial.
4. Aggrieved with both the orders, i.e. the order dated 8.6.1999, whereby the learned Chief Judicial Magistrate had taken cognizance of the offence and order dated 16.11.1999, by which the 4 learned Sub Divisional Judicial Magistrate had directed for issuance of process against the accused persons including the petitioner, the petitioner, while invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure, has filed the present petition. On 7.3.2000 while directed for issuance of notice to Opp.Party no.2 , this Court had directed that pending notice, further proceedings in Complaint Case No.266 (C) /99 pending in the court of Sri A.N.Pandit , Judicial Magistrate, 1st Class, Khagaria shall remain stayed. Subsequently, on 4.1.2001 the present petition was admitted and it was directed that pending disposal of this application, interim order passed on 7.3.2000 will continue and the stay order is till continuing.
5. While challenging both the orders, Sri Yogesh Chandra Verma, learned Senior Counsel for the petitioner argued that the allegation, which has been levelled in the complaint petition is not probable, in view of the fact that the petitioner was a respectable member of the society and he was member of the Legislative Assembly. He submits that it is not expected that an M.L.A. will commit such a crime, as alleged in the complaint petition. Sri Verma, learned senior counsel for the petitioner has also referred to Annexure-2 to the petition, which is a typed copy of a letter dated 4.6.1999 purported to be submitted by the complainant to the Incharge Medical Officer, Beldour. It was argued that in the information, which was given by the complainant to the Incharge Medical Officer, the complainant had alleged that the accused persons 5 including this petitioner had only abused her and thereafter he tried to assault the complainant. It was submitted that though the occurrence was committed on 4.6.1999 and complainant filed a report before the Addl. Medical Officer on the same date, wherein the complainant had disclosed regarding abuse and attempt to assault, in a well designed manner after expiry of three days from the date of occurrence, the present complaint petition was filed and in the complaint petition, the allegation of assault, snatching etc. were added.
6. Learned Senior Counsel for the petitioner submits that since after concocting the story and exaggerating the allegation the present complaint was filed, the impugned orders are liable to be set aside on this sole ground. He submits that initiation of proceeding on such complaint amounts to abuse of the process of the Court. Learned Senior Counsel has relied upon a Judgment of this Court, reported in 1975 BBCJ 865 ; Akhileshwar Prasad Narain Singh & Ors Vs. State of Bihar. Learned counsel for the petitioner has emphatically referred to paragraph -5 of the said Judgment and submits that the facts and circumstances of the present case is almost similar to the case of Akhileshwar Pd. Narayan Singh's case ( supra). Learned Senior Counsel has also tried to persuade the Court that the order of cognizance dated 8.6.1999 was technically not permissible. He has argued that only after receipt of the complaint petition without examining the complainant on S.A. or examining any witnesses, the learned Magistrate had taken cognizance of the offence and, as such, according to Sri Verma, learned Sr. Counsel for the petitioner, the 6 order of cognizance dated 8.6.1999 is liable to be set aside. On the aforesaid grounds, learned counsel for the petitioner has prayed to quash both the orders passed by the learned Chief Judicial Magistrate and the learned Sub Divisional Judicial Magistrate, respectively in the present case.
7. Sri A.M.P. Mehta, learned counsel appearing on behalf of the State has opposed the prayer of the petitioner. He has argued that the complaint petition itself categorically states that how this petitioner, though, occupying the position of M.L.A. has indulged in such occurrence. He submits that on the basis of complaint petition itself , the offence as alleged in the complaint petition has been made out and while taking cognizance and summoning the petitioner, the learned Magistrate has committed no irregularity or illegality , rather the orders were passed in accordance with law and accordingly, he has prayed for rejection of the present petition.
8. Besides hearing learned counsel for the petitioner, I have also examined the materials available on the record. So far the argument advanced on behalf of the petitioner that it cannot be expected that the petitioner being an M.L.A. will commit such crime is concerned, I am of the view that such submission requires no notice by this Court or such submissions is required to be noticed only for its rejection and accordingly I do not find any substance in such submission.
9. So far the second limb of argument as advanced on behalf of the petitioner that the complainant had earlier filed an 7 information to the Addl. Medical Officer is concerned , I am of the view that at this stage , this Court is not required to examine such facts . Moreover, in the present case, a typed copy of the so called letter/ information purported to be written by the complainant has been brought on record as Annexure-2 to the present petition. It need not to be reiterated that while hearing a petition under Section 482 of the Code of Criminal Procedure, this Court may not take notice of such documents, which have been annexed with the petition without being proved in accordance with law. At this stage, it is difficult to record a finding whether Annexure-2 is admissible as evidence or not. For the purposes of proving documents, there is specific procedure provided under the Evidence Act and that can be examined during the trial of the case, not at this stage.
10. So far the Judgment, on which the learned senior counsel for the petitioner has relied upon i.e. Akhileshwar Prasad Narain Singh's case (supra), I am of the view that fact of the case was not exactly similar to the present case. In the said case, the informant had initially filed a written report to the police, which was recorded as Sanha Entry and, thereafter on the same allegation after exaggerating the allegation he had lodged an F.I.R. In the present case, the fact is not exactly the same. First of all at this stage , this Court cannot record a finding that the complainant had actually filed any report before the Addl. Medical Officer as has been submitted by the learned counsel for the petitioner , while referring to Annexure-2 and secondly even for the time being if it is assumed that the said 8 report i.e. Annexure-2 was filed by the complainant before the Addl. Medical Officer, the said complaint itself indicates that this petitioner on the date of occurrence, intercepted the complainant while she was going to her Office, had abused and he had tried to assault her. Without recording any finding on Annexure-2 to the petition, on the basis of averments made in the complaint petition, this Court is satisfied that the learned Magistrate has rightly passed order of cognizance as well as directed for issuance of process against the petitioner.
11. The argument advanced by Sri Verma , learned Senior Counsel that the Chief Judicial Magistrate without examining the complainant on S.A. or examining any witness was not authorized to take cognizance of the offence , has also no force in the eye of law, rather the submission is contrary to the provisions, contained in the Criminal Procedure Code . For the purposes of taking cognizance, the procedure under Section 190 of the Code of Criminal Procedure is specific. Before proceeding further, I think it appropriate to quote Section 190 of the Code of Criminal Procedure:
"190.Cognizance of offences by Magistrate-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence--
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own 9 knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."
12. On bare perusal of Section 190 (1) (a) of the Code of Criminal Procedure, it is evident that a Magistrate is competent to take cognizance of offence on the basis of a complaint petition. There is no ambiguity in the provision on the point that for the purposes of taking cognizance, it is not condition precedent that the complainant must be examined on S.A. or witnesses must be examined in support of the complaint. This position is further clarified on perusal of proviso to Section 200 of the Code of Criminal Procedure. It is appropriate to quote Section 200 of the Code of Criminal Procedure, which is as follows:
"200.Examination of complainant- a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint ; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after 10 examining the complainant and the witnesses, the latter Magistrate need not re-examine them."
13. Sri Verma, learned Senior Counsel for the petitioner has also referred to Section 200 of the Code of Criminal Procedure and argued that before taking cognizance the Magistrate shall examine the complainant on oath and the witnesses present, if any. At this stage, it is necessary to quote the provision contained in Section 192 of the Code of Criminal Procedure , which is entirely a reply to the argument of Sri Verma, learned Sr. Counsel for the petitioner, which is as follows:
"192. Making over of cases to Magistrates.--(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.
(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial."
14. On examination of the aforesaid provision, there is no ambiguity that while adopting the procedure under Section 192 of the Code of Criminal Procedure, the requirement of examining the complainant on S.A. or examination of witnesses is not mandatory. In the present case, while adopting the procedure under Section 192 of the Code of Criminal Procedure after receipt of the complaint, learned Chief Judicial Magistrate took cognizance of the offence and 11 transferred the case for enquiry and disposal and the court of Sub Divisional Judicial Magistrate, who after examining the complainant on S.A. and enquiring witnesses directed for issuance of summons.
15. So far as the disclosure of offence in the case is concerned, the contents of the complaint petition is very much affirmative on the point that offence alleged was committed by the petitioner along with other two accused persons.
16. In view of the facts and circumstances mentioned herein above as well as in view of the provisions contained in the Criminal Procedure Code , I am of the considered opinion that while taking cognizance of offences by order dated 8.6.1999 and also while directing for issuance of process for securing attendance of the accused persons by its order dated 16.11.1999 the learned Chief Judicial Magistrate and the learned Sub Divisional Judicial Magistrate had acted in accordance with law and there is no irregularity or illegality in the order.
17. Accordingly, I do not find any merit in the present petition and the petition stands rejected.
18. In view of rejection of the present petition, interim order of stay stands automatically vacated.
19. Keeping in view the fact that the order of cognizance was stayed in the year 2000 and stay continued for more than 10 years, it is desirable in view of the facts and circumstances of the present case to direct the court below to proceed with the case expeditiously and conclude the case as early as possible. 12
20. With the above observation and direction, the petition stands rejected.
( Rakesh Kumar, J ) Patna High Court,Patna Dated : the 13th May,2010 Nawal Kishore Singh/ N.A.F.R.