Patna High Court - Orders
Pankaj Kumar Ray vs The State Of Bihar on 14 March, 2023
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.44520 of 2018
Arising Out of PS. Case No.-3293 Year-2015 Thana- BEGUSARAI COMPLAINT CASE
District- Begusarai
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Pankaj Kumar Ray Son of Ram Chandra Ray Resident of 129, Gonv Tola
Shahajadapur, Town/Village- Gaura 1 Part, Anchal- Teghra, Police Station-
Teghra, District- Begusarai.
... ... Petitioner/s
Versus
The State Of Bihar
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Rajendra Narain, Sr. Advocate
Mr.Kaushal Kumar Singh, Advocate
For the Opposite Party/s : Mr. Bharat Bhushan, APP
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CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL ORDER
3 14-03-2023I.A. No.01 of 2023 The present interlocutory application has been preferred for addition of names that finds place in the complaint petition as opposite party nos.2 to 9.
In view of the averments made, the I.A. No.01 of 2023 is allowed.
Let the name of the persons incorporated in para-3 be arrayed as opposite party nos.2 to 9.
Cr. Misc. No.44520 of 2018 Heard learned Senior Counsel for the petitioner and Mr. Bharat Bhushan, learned APP who represent the State.
The petitioner has moved this Court for quashing of the order dated 05.02.2018 passed by the learned A.C.J.M., Patna High Court CR. MISC. No.44520 of 2018(3) dt.14-03-2023 2/7 Teghra, Begusarai and consequential order dated 09.04.2018 passed by the learned Chief Judicial Magistrate, Begusarai in Complaint Case no.3293(C) of 2015 under Section 182,211 of the Indian Penal Code.
The petitioner herein filed Complaint Case No.1184 of 2015 in the court of learned Chief Judicial Magistrate, Begusarai against the accused persons alleging therein that when he was returning after closing his shop, the accuseds approached, armed variously forced him to open the shop and upon his resistance, broke upon the lock and looted ready made garments worth Rupees seven lacs as also other items. They left but not before threatening him of dire consequences if he approaches the police.
The learned court on 25-03-2015 forwarded the petition to the concerned police station for lodging of the FIR which resulted into Teghra P.S. Case No.91 of 2015 on 02-04- 2015.
However, sensing connivance of the police officials with the accused persons, on 08-04-2015, Protest-cum- Complaint Petition was once again preferred by the petitioner herein. The submission is that his fear came true and on 18-06- 2015 when the police submitted final form so far as the accused Patna High Court CR. MISC. No.44520 of 2018(3) dt.14-03-2023 3/7 persons are concerned while recommending action against the petitioner herein under Section 182/211 of the IPC.
On 06-07-2015, the learned court remarked the final form as seen and on 05-10-2015 the same was accepted.
The further submission is the complaint petition remained alive and between 12.01.2016 to 24.01.2016 five witnesses were examined by the court concerned.
No further order was passed for three long years and on 05-02-2018 the learned court taking into account the fact that final form has already been accepted as also an order of this Court in Cr. Misc. No.42389 of 2012 dated 14.05.2015 in a different case rejected the complaint petition of the petitioner and further on 09.04.2018 passed order for proceeding under Section 182/211 of the I.P.C. against the petitioner herein.
Aggrieved, the present case.
Learned Senior Counsel submits that before the final form was submitted on 18-06-2015, a Protest-cum-Complaint Petition was already there before the court preferred on 08-04- 2015 even after acceptance of the final form on 05.10.2015, the learned court proceeded with the complaint petition and examined altogether five witnesses between 12.01.2016 to 24.01.2016. However, thereafter it completely remained silent Patna High Court CR. MISC. No.44520 of 2018(3) dt.14-03-2023 4/7 for next three years and only on the basis of an order of this Court passed in different case and without incorporating any word on the witnesses that were examined by the court in 2016, the order in question was passed.
Learned Senior Counsel provided a copy of the Cr. Misc. No.42389/2012 disposed of on 14.05.2015 by a bench of this Court (Hon'ble the Chief Justice, as he then was).
This Court has gone through the said order in which in the last para the Court observes as follows:
"Once the final report was accepted, the proceeding referable to the FIR stand terminated. If the second respondent was aggrieved on account of the acceptance of the final report filed by the police, he ought to have approached this Court by instituting appropriate proceedings. However, on his insistence, the protest petition was treated as a complaint under Section 200 Cr. P.C. Whatever be the possibility for the protest petition being treated as a complaint under Section 200 Cr. P.C., once the final report has been Patna High Court CR. MISC. No.44520 of 2018(3) dt.14-03-2023 5/7 accepted, the question of keeping the matter alive through a different channel does not arise."
Learned Senior Counsel drew attention of this Court to an order of the Hon'ble Apex Court in Kishore Kumar Gyanchandani v. G.D. Mehrotra & Anr. reported in (2011) 15 SCC 513 with specific reference to paragraph-6 which state as follows:
"It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows Patna High Court CR. MISC. No.44520 of 2018(3) dt.14-03-2023 6/7 the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in the case of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha and Ors., whereunder the view of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding."
He as such submits that the learned court had all the power to reject the complaint petition after the five witnesses were examined but the learned court taking into account the earlier acceptance of final report as also the order of the Patna High Court in a different case not only rejected the prayer of the petitioner, the concerned court went ahead and directed action against the petitioner herein.
Having gone through the facts of the case, the order of Patna High Court CR. MISC. No.44520 of 2018(3) dt.14-03-2023 7/7 the Patna High Court in Cr. Misc. No.42389/2012 as also the order of the Hon'ble Apex Court in Kishore Kumar Gyanchandani v. G.D. Mehrotra & Anr. (supra) the petitioner has certainly made out a case.
Issue notice to the newly added Opposite Party Nos.2 to 9 under both process i.e. registered cover with A/D as well as ordinary process, within three weeks, failing which this application shall stand rejected without further reference to the Bench.
Put up this case after service of notice and/or appearance of the above Opposite Party Nos.2 to 9, whichever is earlier.
In the meantime, the operation of the order dated 09.04.2018 in Complaint Case no.3293(C) of 2015 pending before learned Chief Judicial Magistrate, Begusarai shall remain stayed.
(Rajiv Roy, J) Prakash Narayan /-
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