Patna High Court
Md. Serajuddin vs The State Of Bihar And Ors on 8 January, 2020
Author: Birendra Kumar
Bench: Birendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.17363 of 2015
Arising Out of PS. Case No.-60 Year-2009 Thana- MUFFASIL District- West Champaran
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Md. Serajuddin, son of Md. Rashid Mian, Resident of village- Sabeya,
Deoraj, P.S. Ram Nagar, District- West Champaran
... ... Petitioner/s
Versus
1. The State of Bihar
2. Aurangjeb, son of Nashruddin Mian, Resident of village- Siyarosati, P.S.-
Manuapul, District- West Champaran
3. Hasmullah, son of Aldata Mian
4. Makmulla Khatoon wife of Hasmullah Mian Both are resident of village-
Mahna Kulli, P.S.- Chanpatia, District- West Champaran
5. Mahmood Mian son of Abdul Haque Mian
6. Istakhar Mian son of Mahmud Mian
7. Subi Khatoon wife of Istakhar Mian
8. Nesar Mian Son of Mahmood Mian
9. Sahima Khatoon wife of Nesar Mian, All are resident of village- Gauripur
Sheikh Toli, P.S.- Balthar, District- West Champaran
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Sanjay Kumar No.-7, Advocate
Mr. Neeraj Kumar Singh, Advocate
For the Opposite Party No. 2 to 9: Mr. Bimlesh Kumar Pandey, Advocate
For the State : Mr. Sunil Kumar Pandey, APP
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CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
ORAL JUDGMENT
Date : 08-01-2020 Heard learned counsel for the parties.
2. The petitioner filed Complaint Case No. 880(C) of 2008 before the learned Chief Judicial Magistrate, Bettiah against opposite party no. 2 to 9 alleging therein that on 26.04.2008, when the complainant was returning along with his wife Hazra Khatoon, the accused persons abducted to Hazra Khatoon and threatened to Patna High Court CR. MISC. No.17363 of 2015 dt.08-01-2020 2/4 kill. The complaint was filed under Section 364 of the Indian Penal Code. On the order of the learned Judicial Magistrate, under Section 156(3) Cr.P.C., the police registered Bettiah Muffasil (Manuapul) P.S. Case No. 60 of 2009 under Section 364 of the Indian Penal Code. During investigation, statement of the victim was recorded wherein she stated that no one had kidnapped her, rather she had voluntarily married a year back with opposite party no. 2 Aurangjeb.
3. Thereafter, on 31.05.2009, the police filed a petition before the court of learned Chief Judicial Magistrate, Bettiah that the petitioner has committed offence under Section 182 and 211 of the Indian Penal Code, hence, he should be prosecuted on the ground that after investigation, report, under Section 173 Cr.P.C., was submitted as allegation false and untrue.
4. The petitioner had filed a protest petition in the case on 27.05.2009. That was registered separately as complaint case No. 2965(C) of 2010 which was subsequently dismissed under Section 203 Cr.P.C. on 06.01.2016 and the order has attained finality.
5. By order dated 01.12.2010 passed in Sessions Trial No. 368 of 2011 arising out of Case No. 65 NF of 2009, the Patna High Court CR. MISC. No.17363 of 2015 dt.08-01-2020 3/4 learned court below took cognizance against the petitioner for offence under Section 182 and 211 of the Indian Penal Code.
6. Learned counsel for the petitioner has challenged the impugned order on different grounds including on the ground that no offence under Section 182 and 211 of the Indian Penal Code is made out and the cognizance is barred by limitation.
7. Contention is that the impugned order would show that the court below had issued notice against the petitioner and service report was not available. Therefore, the impugned order was passed in violation of the principle of natural justice as the petitioner was not heard. He further submits that the record of Bettiah Muffasil (Manuapul) P.S. Case No. 60 of 2009 would show that the final form submitted by the police, under Section 173 Cr.P.C., was accepted by the court without service of notice against the petitioner, as such, opportunity of hearing was not there to the petitioner.
8. Learned counsel for the opposite party no. 2 to 9 has opposed the prayer, however, he is unable to satisfy the Court that service of notice was ever affected on the petitioner before the impugned order was passed.
9. Whether notice to the petitioner is requirement of law or not need not be considered in view of the facts and Patna High Court CR. MISC. No.17363 of 2015 dt.08-01-2020 4/4 circumstances of this case that the court below decided to notice the petitioner first and then pass any order. Therefore, the court below should have ensured that proper service of notice against the petitioner was there.
10. Since the impugned order was passed in violation of the natural justice, the same is not sustainable in law. Accordingly, stands quashed and the matter is remitted back to the court below to pass necessary order after giving opportunity of hearing to the parties.
11. The order has been passed in presence of learned counsel for the parties. Hence, the matter be listed before the court below on 12.02.2020, when the parties shall remain present before the court below. No further notice need be sent to any of the parties by the court below.
12. This application stands allowed.
(Birendra Kumar, J) Kundan/-
AFR/NAFR N.A. CAV DATE N.A. Uploading Date 15.01.2020 Transmission Date 15.01.2020