Patna High Court - Orders
Tej Narayan Jha & Ors vs State Of Bihar & Anr on 15 March, 2012
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.36536 of 2008
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Dr.Shankar Jha, Son of late Hari Jha, Resident of village Gangapur, P.S.
Pandaul, District Madhubani.
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Gajendra Thakur, Son of Shri Ghuran Thakur, Resident of village
Kaithiniya, P.S.-R.S. Shivir Jhanjharpur, District Madhubani.
.... .... Opposite Party/s
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with
Criminal Miscellaneous No.36583 of 2008
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1. Tej Narayan Jha, son of Mr. Krit Narayan Jha
2. Gauri Shankar Prasad Shrivastava, S/o Mr. Randhir Bahadur alias Dr.
Runghun Prasad, Both of village Behat Tole Patharahi, P.O. & P.S.
Thana Jhanjharpur R.S. Sibir, District Madhubani, Bihar.
3. Arun Kumar Thakur, s/o Mr. Roop Narayan Thakur
4. Kamal Narayan Thakur, son of Mr. Balbhadra Thakur
5. Hari Narayan Thakur, S/o Mr. Kamal Narayan Thakur
3 to 5 are resident of At & P.O. Kaithiniya, P.S. Jhanjharpur R.S. Sibir,
District Madhubani, Bihar.
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Gajendra Thakur S/o Mr. Ghuran Thakur, resident of At & P.O.
Kaithiniya, P.S.-R.S. Sibir, Jhanjharpur, District Madhubani, Bihar.
.... .... Opposite Party/s
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
ORAL ORDER
9 15-03-2012Since both the petitions arise out of same order i.e. order dated 2.8.2008 passed by Fast Track Court,I, Madhubani in Sessions Trial No.657 of 2007, they were heard together and are being disposed of by this common order.
2 Patna High Court Cr.Misc. No.36536 of 2008 (9) dt.15-03-2012
2 / 12 In both the petitions, petitioners have challenged the order whereby learned trial court has rejected the petition for discharge filed under Section 227 of the Code of Criminal Procedure.
Shri Chitranjan Sinha, learned Senior Counsel, who had appeared in both the cases on behalf of the petitioners, has argued that on the basis of averment made in the complaint petition itself, no offence is made out. Nor, during enquiry before the cognizance, any material was brought on record disclosing complicity of the petitioners of both the cases in the present case and as such at the time of charge, petition was filed under Section 227 of the Code of Criminal Procedure, which has been rejected by the impugned order, which requires to be interfered with. It was submitted by learned Senior Counsel that admittedly in this case, kidnapping of father of the informant was done in the year 3 Patna High Court Cr.Misc. No.36536 of 2008 (9) dt.15-03-2012 3 / 12 1983 and thereafter, no step was taken by the complainant for filing any case and at belated stage in the year 2002, the present complaint petition was filed disclosing complicity of petitioners for commission of offences under Sections 323, 364, 302, 420, 468 and 120B of the Indian Penal Code. In respect of petitioner Dr. Shankar Jha in Cr. Misc. No.36536 of 2008, learned Senior Counsel has referred to number of paragraphs of petition to show that the petitioner was a Medical Officer and he, for the first time, joined at Jhanjharpur in the year 1989 and as such there was no question for involvement of the petitioner in the present case.
In this case, the opposite party no.2 has appeared through Shri Ashok Kumar Mishra, learned counsel. The opposite party no.2 has also filed a counter affidavit and brought on record depositions of witnesses which was recorded after framing of the 4 Patna High Court Cr.Misc. No.36536 of 2008 (9) dt.15-03-2012 4 / 12 charge. It was submitted by Shri Mishra that discharge petition was rejected on 2.8.2008 and thereafter, charges were framed. During the trial, altogether six witnesses have already been examined and trial had proceeded. However, in view of order passed by this Court dated 18.7.2011, same has been stayed.
It was further submitted that petitioner Dr. Shankar Jha, after enquiry, when was summoned, approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure by filing Cr. Misc. No.22066 of 2006. The said petition was specifically preferred against the order of cognizance dated 17.7.2002. The said petition was dismissed by a Bench of this Court by assigning a detailed reason. The said order has been brought on record as Annexure-4 to the petition in Cr. Misc. No.36536 of 2008.
It was submitted that once on merit, 5 Patna High Court Cr.Misc. No.36536 of 2008 (9) dt.15-03-2012 5 / 12 this Court had already rejected the petition filed against the order of cognizance, this Court, at subsequent stage, may not enquire and examine evidences, which were brought on record before the order of cognizance. Since it has already been looked into by a co- ordinate Bench of this Court and repealed by this Court again examining same material may amount to review of earlier order, which is prohibited under the law.
In reply, Shri Sinha, learned Senior Counsel for the petitioners, has argued that even in the changed circumstances and even at the stage of evidence, this Court is well empowered under Section 482 of the Code of Criminal Procedure to interfere with the case and quash the same. In support of his argument, he has referred to an order passed by Orissa High Court reported in 1985 Cr. Law Journal NOC 92 (Madan Mohan Agrawal Vs. State of Orissa) as well as an un-reported order passed by this Court in Cr. Misc. 6 Patna High Court Cr.Misc. No.36536 of 2008 (9) dt.15-03-2012
6 / 12 No.12916 of 2009 (Shivshankar Chaudhary & others Vs. State of Bihar) disposed of on 21.12.2011. He submits that if Court is satisfied that there is no ground for proceeding with a case, this Court can interfere at any stage of a criminal case. He has further argued that even though the petition against order of cognizance was rejected by a Bench of this Court, this Court can re-examine and pass favourable order. It will not amount to review or recall of earlier order. In support of his argument, he has relied upon a judgment of this Court reported in 1978 PLJR 610 (Kasi Ram Dhandhanya Vs. Union of India). He submits that in the said case, once quashing application was rejected and subsequently, after two years, again petition was filed which was allowed by the High Court. Subsequently, said order was assailed before the apex court. However, the apex court approved the order passed by the High Court. 7 Patna High Court Cr.Misc. No.36536 of 2008 (9) dt.15-03-2012
7 / 12 In view of aforesaid facts and circumstances, it was submitted that even though, the petition against the order of cognizance was rejected, this Court can re- examine the evidences brought during the enquiry stage and interfere with the case.
Shri Uma Shankar Prasad Singh, learned Additional Public Prosecutor supports the argument advanced by Shri Ashok Kumar Mishra, learned counsel for opposite party no.2.
Besides hearing learned counsel for the parties, I have also perused the materials available on record. Fact remains that Dr. Shankar Jha in Cr. Misc. No.36536 of 2008 had assailed the order of cognizance vide Cr. Misc. No.22066 of 2002 and a Bench of this Court by assigning a detailed reason had rejected the same by order dated 6.4.2004. At the time of argument, learned Senior Counsel for the petitioners has again referred the complaint petition as well as 8 Patna High Court Cr.Misc. No.36536 of 2008 (9) dt.15-03-2012 8 / 12 evidences which were brought on record before the order of cognizance.
The court is of the opinion that once the issue which was raised before this Court and decided against the petitioners, same issue cannot be re-examined by this Court in a subsequent proceeding due to the simple reason that review or recall of an order passed in a criminal case is barred under Section 362 of the Code of Criminal Procedure. Similarly, the apex court in a case reported in 2001(1)S.C.C.169 (Hari Singh Mann Vs. Harbhajan Singh Bajwa and others) has already indicated that once an order is passed in a criminal case on same issue, subsequent petition cannot be entertained. It would be appropriate to quote paragraph-10 of Hari Singh Mann's case (Supra) as follows :
"10. Section 362 of the Code mandates that no court, when it has signed its judgment or 9 Patna High Court Cr.Misc. No.36536 of 2008 (9) dt.15-03-2012
9 / 12 final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error. The section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered 10 Patna High Court Cr.Misc. No.36536 of 2008 (9) dt.15-03-2012 10 / 12 except to the extent of correcting a clerical or an arithmetical error. The reliance of the respondent on Talab Haji Hussain case is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561-A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was drafted keeping in view the 11 Patna High Court Cr.Misc. No.36536 of 2008 (9) dt.15-03-2012 11 / 12 recommendations of the 41st report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment."
Moreover, in the present case, after the rejection of discharge petition, charges have already been framed. The argument, which was advanced by learned counsel for opposite party no.2 that after framing of the charges, six witnesses have already been examined, has not been disputed by learned counsel for the petitioners. Meaning thereby, after framing of the charge, trial is in continuation and number of witnesses have already been examined.
In view of the fact that evidence had already commenced, it would not be appropriate or advisable for this Court to 12 Patna High Court Cr.Misc. No.36536 of 2008 (9) dt.15-03-2012 12 / 12 interfere with the criminal prosecution, that too, while exercising power under Section 482 of the Code of Criminal Procedure, for which time without number, it has been held that this power is to be exercised sparingly and in rarest of rare cases. I do not consider that this case can be put in the category of rarest of rare cases and as such both the petitions stand dismissed.
In view of dismissal of this
petition, interim order of stay dated
18.7.2011 stands automatically vacated.
Keeping in view the fact that case is of the year 2002, it is desirable to direct the court below to proceed with the case expeditiously so that trial may come to its logical end without un-necessary delay.
(Rakesh Kumar, J) N.H./-