Patna High Court - Orders
Dudhnath Singh & Ors vs State Of Bihar & Anr on 30 August, 2013
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.7535 of 2013
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1. Dudhnath Singh S/O Late Parmeshwar Singh,
2. Sanjay Singh @ Pappu Singh S/O Late Umanath Singh,
3. Gulshan Singh S/O Sri Sanjay Singh @ Pappu Singh
4. Surendra Kr. Singh S/O Sri Haribansh Singh
5. Mukesh Kr. Singh S/O Sri Haribansh Singh
6. Vivek Singh @ Vivek Kr. S/O Sri Surendra Singh
7. Pintu Singh S/O Sri Dudhnath Singh,
8. Mithilesh Singh S/O Sri Naresh Singh
All residents of Village-Karnpura, P.O.- Bairiya, P.S.- Gopalpur, District-
Patna.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. Sunaina Devi W/o Upendra Singh @ Upendra Kumar, Resident Of
Village- Karnpura, P.O.- Bairiya, P.S.- Gopalpur, District- Patna.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s :M/s Harsh Singh and Kamal Kishor Singh, Advs.
For the Opposite Party/s : Mr. Ajay Kumar Thakur and Amit Kumar, Advs.
For the State : Mr. Ajay Kumar-I, APP
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
2 30-08-2013Heard learned counsel for the petitioners and learned counsel for the State.
In this case, petitioners are challenging the order dated 8th November 2012 passed by learned Judicial Magistrate 1st class, Patna in Complaint Case No. 2013(C)/ 2012 for offences under sections 147, 323, 379, 427, 452/504 of the Indian Penal Code.
The primary issue has been raised by the counsel for the petitioners to set aside the order of cognizance and the matter Patna High Court Cr.Misc. No.7535 of 2013 (2) dt.30-08-2013 2/9 be remanded back to the court below with direction to court below to exercise the power u/s 156(3) Cr.P.C. giving direction to the police to investigate the case, thereafter the court below on the basis of materials collected, may pass the order in accordance with law, whereas the counsel for the opposite party has submitted when a complaint petition is filed, Magistrate has three course open to exercise the jurisdiction, either the Magistrate will take cognizance after obtaining statement on oath supported by the evidence of witnesses or he can give direction to the police to investigate the case and after receipt of the report, the court below will act in terms of material collected by the police and lastly, possible mode is left to the Magistrate that he may hand over the matter to any other agency apart from the police for enquiry and report, the court would pass the order as per the materials collected during the enquiry.
The counsel for the petitioner vehemently submits, it is nothing but a counter blast of the case which has been filed against male member opposite party No. 2 where serious allegation has been made for inflicting the fire arms injury to the petitioner and one stranger, in turn the police instituted the case in different section of Penal Code including under section 307 of the Indian Penal Code so much so, he has submitted that while Patna High Court Cr.Misc. No.7535 of 2013 (2) dt.30-08-2013 3/9 lodging the complaint case the O.P. No. 2 did not come with clean hand, suppressing the material of lodging the FIR against her male family members, even though query was made by the court about the existence of any counter case in between the parties or not.
In support of his contention, the counsel for the petitioner has relied on judgment reported in 1993 (1) Cr. LJ 717, 2001 Cr. LJ 1192, 1974 Cr. LJ 970 para 50, 2010 (4) SCC 185 para- 11, 14, 19, 20, 23 and 24 and in 2013 (2) PLJR 82 (Mumtaz Alam vs. State of Bihar & Anr.).
From the record it appears that the present case is arising from Complaint Case No. 2013(C)/2012 where the allegation has been made that on 10th July 2012 at about 7.30 hour while the female inmates were cooking the food heard sound of large number of persons as they were hysterically abusing, asking to open the door whereupon Dudhnath Singh, Sanjay Singh @ Pappu Singh, Gulsan Singh, Surendra Singh, Vivek Singh, Mukesh Singh, Pikku Singh, Mithilesh Singh having been armed with different lethal weapons forcibly entered into inner portion of the house. Other female member and one Dharmendra Kumar objected the manner of their behaviour whereupon Dhudnath Singh gave a slap to the complainant, hurled abuses and asked whereabout of Upendra and Binod who happen to be the Military Patna High Court Cr.Misc. No.7535 of 2013 (2) dt.30-08-2013 4/9 men, as no male member was available in side and as such they could not be recovered. Allegation has been made, Pappu Singh gave a lathi blow on the head of Girija Devi and Dudhnath Singh pointed the gun, hurled threat, whoever would prevent, would face, dire consequences. All accused persons entered into the different room. The complainant objected the entrance of Gulsan Singh in the room of her daughter in law, then Vivek Singh snatched necklace from Arti Devi and tried to outrage her modesty. When Dharmendra Singh, son of complainant, raised objection, Surendra Singh gave blow with butt portion of the gun, there is also allegation that Mukesh Kumar had also given blow with butt portion of the gun on the back side of Dharmendra Singh, when the accused persons saw resistance, then Pinku Singh in agitated mood, exhorted the persons to commit rape, only then the problem would be solved. There is an allegation, the accused persons had forcibly took away the material ornament mentioned the complaint petition including Rs. 20,000/- in cash. It has been alleged, the complainant received the loss of Rs.5-6 lakhs.
In the complaint petition allegation has been made that both the family members have been carrying bad relationship against each other. In support of the statement in the complaint case, the informant made her statement on solemn affirmation Patna High Court Cr.Misc. No.7535 of 2013 (2) dt.30-08-2013 5/9 which was supported by the evidence of the witnesses. On the basis of material, the court below took cognizance. The story of other side of coin is the FIR(Annexure-2) was lodged by Dudhnath Singh which has been registered as Gopalpur P.S. Case No. 44 of 2012 for offences under sections 147, 148, 149, 326, 323, 307, 504 of the Indian Penal Code perpetrated on 11.7.2012 at 5.00 o'clock, there the allegation has been made, at about 11.00 hours while the informant (Dudhnath Singh, petitioner No.-1)was going to cultivate the land, appertaining to khata No. 21, plot Nos. 583 and 588, area 2 about bighas, in the meantime, his agnate, namely, Binod Singh son of Raghubar Singh reached there and started hurling abuses and prevented to cultivate the land. While hot discussion was going on between them, Upendra Singh, Dharmendra Singh @ Banti, Raja son of Upendra Singh, Manoj Singh and Subodh Singh son of Dwarika Singh came at the aforesaid plot armed with gun, pistol and rifle. They were claiming the possession over the land, all the family members, felt frightened tried to escape from there, by the time, Upendra Singh and Manoj Singh resorted firing from their guns. There is an allegation, Upendra Singh caused fire arms injury on the right thigh and there is an allegation that a stranger, namely, Satyendra Kumar also received the fire arms injury. On receipt of the injury Patna High Court Cr.Misc. No.7535 of 2013 (2) dt.30-08-2013 6/9 the informant fell down on the ground, by the time, the villagers assembled there. Looking to the grim situation, all the accused persons fled away from there. It has been claimed that a proceeding u/s 145 of the Code was going on between the parties.
There is no dispute on the principle when the complaint petition is filed, the Magistrate on receipt of the same, after examination of the complaint petition could ask the complainant to give his or her statement on oath supported by any other evidence or the matter can be sent to the Police for investigation u/s 156(3)Cr.PC or there may be directed to hold an enquiry from any agency other than the Police. It is the wisdom of the Magistrate to follow any of three courses opened to him to the facts and circumstances of the case. Higher Court cannot ask to opt particular curse substituting the course followed by magistrate. In the present case, the court below instead of referring the matter to the police u/s 156(3)Cr.PC. himself asked the complainant to come forward on solemn affirmation with any supporting witness.
The counsel for the petitioner submits in situation of case and counter case, in that circumstance, it would have been prudent and better option for the Magistrate instead of, straightway asking the complainant to come on the dock, ought to have referred the matter to the police for investigation, as the Patna High Court Cr.Misc. No.7535 of 2013 (2) dt.30-08-2013 7/9 police would have an opportunity to investigate the matter, collect the evidence and place the same before the Magistrate and thereafter the Magistrate would have acted in terms of the law. He has further submitted, no course is opened to Magistrate under the Code of Criminal Procedure in complaint case, if the allegation is found to be false though under the Code, in case of Police case after investigation, has found, the lodging of the FIR is completely false, fabricated and malicious, the police can lodge an FIR u/s 182 and 211 of the Code and in support of his submission, he has relied on judgment 2013 (2) PLJR 82 (supra).
Here, the question arises even there is no provision for initiation of proceeding against the complainant for lodging of the false case can be a ground for remanding the matter, asking the Magistrate to send the case for investigation in view of the fact, when there was a counter case and there is no mentioning of any statement or whisper about the earlier case which was lodged by the petitioners even on the query of the Court, which amounts to material suppression.
The Court was examining the fact for the purpose of forming an opinion of taking cognizance. Here, in the present case, point has been raised by the petitioner, even though the informant was a lady member of the family but she must be Patna High Court Cr.Misc. No.7535 of 2013 (2) dt.30-08-2013 8/9 knowing the fact, there was a case in between the parties and purposely she withheld the fact from the Court which itself is attending circumstance for forming an opinion of malicious prosecution. It is very difficult for this Court to arrive at such conclusion, as earlier the case was lodged by the male member. Female members were not party to the earlier case. If the Magistrate has adopted a particular course which is permissible in law, this Court cannot supplant. This Court cannot ask the Magistrate to adopt a particular course even though court followed is permissible in law, it is the Magistrate who has decided course on the facts and circumstances of case. This Court can interfere only in the circumstance when the Magistrate acted dehors to the law or acted with material illegality in forming an opinion, no materials were available for cognizance, inherently absurd story has been stated, the attending facts only pointed malicious prosecution and facts primarily constitute civil wrong. In the present case, there is no argument raised by the petitioner that the course adopted by the Magistrate is a wrong course, as the court below after examination of the witness has taken cognizance. This Court can interfere with malicious prosecution but facts should be clear, without hazyness. In the case of State of Haryana vs.Bhajan Lal, AIR 1992 SC 604 the Hon'ble Supreme Court has Patna High Court Cr.Misc. No.7535 of 2013 (2) dt.30-08-2013 9/9 given illustration but not exhaustive grounds for interference. The Court in particular case finds, it is completely be malicious prosecution would interfere with the case. In the present case, though the prayer is very innocuous but has deep effect is not permissible in law. This Court can interfere only in situation when the Magistrate adopts a course which is against to the law, at present this Court does not interfere with the order impugned. If the court comes to a conclusion that the present case is completely a false case, it will be duty of the court to award the heavy cost against the complainant including the legal action which is permissible in law. At the same time, the petitioner will have a liberty to file an appropriate application at appropriate stage and the court below will be obliged to pass the order in accordance with law.
Accordingly, this petition is disposed of.
(Shivaji Pandey, J) Mahesh/-