Patna High Court - Orders
Bricha Yadav vs The State Of Bihar & Ors on 11 July, 2011
Author: Amaresh Kumar Lal
Bench: Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.325 of 2008
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BRICHA YADAV, son of Late Indar Yadav, resident of
village-Nawalpur, P.S.-Hussainganj, District- Siwan
Versus
THE STATE OF BIHAR & ORS
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Appearance :
For the Petitioner: Mr. Udit Narain Singh, Advocate
For the O.P: Mr. Ranjit Kumar, Advocate
For the State : Mrs. I.B.Pandey, A.P.P
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CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
DATE: 11-07-2011
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL)
4. 11.07.2011The petition at flag 'A' under Section 5 of the Limitation Act has been filed for condonation of delay in filing this revision application.
Heard Mr. Udit Narain Singh, learned counsel for the petitioner, Mr. Ranjit Kumar, learned counsel for the opposite parties and learned A.P.P. for the State.
It appears that there is about 40 days of delay in filing this revision application. The cause of delay has been explained as the petitioner was suffering from Jaundice. It appears that the delay has not been properly explained. However, in the interest of justice, the delay is condoned at a cost of Rs.100/-. The cost should be deposited in favour of the Patna High Court Legal Aid Committee.
It is submitted by the learned counsel for the 2 petitioner that he will deposit the cost of Rs.100/- within a period of one week.
The informant-petitioner has preferred this revision application against the order dated 14.11.2007 passed by learned Judicial Magistrate, Siwan in Complaint Case No.675 of 2007 by which complaint petition has been dismissed under Section 203 of Cr.P.C.
The learned counsel for the petitioner submits that Hussainganj P.S.Case No.142 of 2004 was lodged by the informant petitioner under Sections 364, 201, 302 of the I.P.C. and Section 27 of the Arms Act. After investigation, final form was submitted holding the accused-opposite parties innocent. Later on, the complaint petition no.675/2007 was filed by the petitioner in the court of learned Chief Judicial Magistrate, Siwan for the offences punishable under Sections 364, 302 and 201 of the Indian Penal Code. Learned Chief Judicial Magistrate, Siwan transferred this protest-cum-complaint petition no.675/07 under Section 191 to the court of Sri S.Alam, Judicial Magistrate, Ist class for inquiry. After holding inquiry, the learned Judicial Magistrate has dismissed the petition.
The main contention of the learned counsel for the petitioner is that in view of the provisions contained in Section 202 (2) Cr.P.C., the learned Magistrate is not 3 empowered to hold the inquiry and pass the orders as the offence is triable exclusively by the court of sessions. In this view of the matter, the impugned order is without jurisdiction.
The learned counsel for the opposite parties submits that under Section 202 of Cr.P.C., there is no mentioning of the word Chief Judicial Magistrate. As such any Magistrate can hold inquiry under Sub-Section (1) of Section 202 Cr.P.C. As such, no interference is required.
After hearing learned counsel for the parties and on perusal of the materials available on record, it appears that the petitioner has lodged the F.I.R. against the accused-opposite parties. After investigation, the police submitted final form. The protest petition was filed on behalf of the informant in the court of learned Chief Judicial Magistrate which was registered as Complaint Case No.675/07 under Sections 364, 302 and 201 of the Indian Penal Code; it is exclusively triable by the court of sessions. The complaint petition was filed in the court of learned Chief Judicial Magistrate as the offence is triable by the court of sessions, therefore, in view of the provisions contained in Section 202 (2) Cr.P.C., the Chief Judicial Magistrate is only empowered to pass the orders in accordance with law.
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Considering the facts and circumstances, in my opinion, the impugned order is not fit to be sustained and accordingly, the impugned order is set aside. The case is remanded to the court of learned Chief Judicial Magistrate, Siwan to hold inquiry and proceed with the case in accordance with law.
In the result, this revision application is allowed.
V.K.Pandey ( Amaresh Kumar Lal, J)