Patna High Court - Orders
Jag Mohan Manjhi @ Jag Mohan Lal Manjhi & ... vs State Of Bihar & Anr on 3 March, 2009
Author: Abhijit Sinha
Bench: Abhijit Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.24907 of 2007
1. JAG MOHAN MANJHI @ JAG MOHAN LAL MANJHI, Son of
Sahdeo Manjhi,
2. Akhilendra Kumar Rajan @ Guddu Manjhi, Son of Sri Jag Mohan
Manjhi,
Both residents of Village- Khorodih, P.S. Kopa, District-
Saran
3. Anita Devi Wife of Upandra Manjhi, daughter of Hari Pal Manjhi,
resident of Village- Bhatkeshari, P.S.Jalalpur, District-Saran
------------------ Petitioners
Versus
1. THE STATE OF BIHAR
2. Shri Kishun Manjhi, Son of Santlal Manjhi, resident of Village-
Baripur, P.S. Baniapur, District-Saran ----- Opp.Parties.
-----------
For the petitioners : M/S Mahesh Narayan Parbat,
Sanjay Kumar Jha, and
Parbeen Prabhakar, Advpcates
For the State : Mr. Jharkhandi Upadhaya, A.P.P.
For Opp.Party no.2 : None.
------------
ORDER
The petitioners through this application have prayed for the
quashing of the order dated 13.10.2006 passed by Sri Shambhu Nath
Singh, 9th Additional Sessions Judge, Saran at Chapra, through which
he has been pleased to allow the criminal revision in absence of the
petitioners and modified the order dated 8.11.2004 passed by the
learned Chief Judicial Magistrate, Saran at Chapra in Complaint Case
no.736 of 2003, arising out of the protest filed in Kopa P.S. Case
no.12 of 2002, whereby he was pleased to refuse to take cognizance of
offence under Section 304 B /34 I.P.C. against the present petitioners
and the entire proceedings arising following the order passed in the
criminal revision.
One Shri Kishun Manjhi , the complainant, impleaded
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herein as Opp.Party no.2, had initially filed a written application
before the Officer Incharge , Kopa Police Station on 13.2.2002
regarding an incident, which took place on the same day and on the
basis thereof Kopa P.S. Case no.12 of 2002 was registered under
Section 304B/34 I.P.C. against Pawan Manjhi, Shanti Devi and Sunil
Manjhi, the three persons named in the written report. The police after
due investigation did not find the case to be true and found that the
complainant's daughter had instead been burnt in an accidental fire
while she was preparing meals and died at the Sadar Hospital ,
Chapra, in course of her treatment. The final form submitted by the
police was accepted by the learned Chief Judicial Magistrate, Saran at
Chapra and the protest petition filed by the complainant in the
meantime having been numbered as C-736 of 2003 was taken up for
enquiry under Section 202 Cr.P.C., wherein he named six persons as
accused. Altogether six witnesses were examined by the complainant
apart from himself who though not being the eye witnesses of the
alleged incident tried to support the prosecution case as made out in
the protest petition and tried to implicate the present petitioners
through omnibus allegations. Following the enquiry, the learned
Magistrate notwithstanding the contradictory statements of the
witnesses who either were co-villagers of the complainant or his
henchmen took cognizance under Section 304B/34 I.P.C. against only
the three persons who had been arrayed as accused in the police case.
Aggrieved by the said order, the complainant approached
the Sessions Court through Cr.Revision No.24 of 2005, which was
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finally heard in absence of the petitioners by the 9th Additional
Sessions Judge, Saran at Chapra who was pleased to allow the same
allegedly in complete violation of the provisions of the law as
enumerated in Section 401 (2) Cr.P.C. and modified the order of the
learned Chief Judicial Magistrate, Saran at Chapra taking cognizance
with a direction to issue summons in the said case against these three
petitioners also, whereafter the petitioners have also been impleaded
as accused in this case.
The main grievance of the petitioners herein is that although
they had not been named as accused in the police case and were
sought to be implicated subsequently through protest petition filed by
the complainant, the revisional court without issuing notice to them or
hearing them passed the impugned order and the same amounted to an
infringement of the rights of the petitioners to be heard before an
adverse order against them was passed behind their back.
I have perused the impugned order of the revisional court
and it is apparent therefrom that only the Addl.P.P. had been heard.
There is no indication in the said order that notices were even issued
to these petitioners before an adverse order was passed against them.
It is also apparent therefrom that the initial order taking cognizance
against the three persons arrayed as accused in the protest petition was
held to be an erroneous act of the learned Magistrate since
notwithstanding sufficient materials available in the record from the
enquiry under Section 202 Cr.P.C., the learned Magistrate had failed
in his duty of taking cognizance as against these three petitioners.
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To my mind before an adverse order was passed against the
petitioners the revisional court ought to have noticed them and passed
the impugned orders only after hearing them or their learned counsel.
The failure to invite appearance before an adverse order against them
is passed, to my mind, appears to be in violation of the principles of
natural justice.
Accordingly, this application is allowed and the impugned
order modifying the order of the learned Magistrate and issuance of
summons against them is apparently illegal and is quashed.
( Abhijit Sinha, J )
Patna High Court,Patna
Dated : the 3rd March,2009
Nawal Kishore Singh/ A.F.R.