Patna High Court - Orders
Naval Kishore Prasad vs The State Of Bihar And Ors. on 23 July, 2012
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
Patna High Court Cr.Misc. No.43164 of 2010 (3) dt.23-07-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.43164 of 2010
Naval Kishore Prasad, S/o Late Rameshwar Prasad, Resident of
Village-Bhokilapur, P.S. Hilsa, District-Nalanda at Bihar Sharif.
.... .... Petitioner/s
Versus
1.The State Of Bihar
2. Brahmdeo Prasad Sinha, S/o Late Manik Prasad Sinha, resident
of village-Bhokilapar, P.S. Hilsa, District-Nalanda.
.... .... Opposite Party/s
====================================================
Appearance :
For the Petitioner/s : Mr. Pramod Kumar Sinha, Adv.
For the State : Mr. Jharkhandi Upadhyay, A.P.P.
For the Opposite Party : Mr. Niraj Kumar, Adv.
Mr. Kaushal Kumar Singh, Adv.
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
3 23-07-2012Heard learned counsel for the petitioner, learned Additional Public Prosecutor for the State and learned counsel appearing for Opposite party No. 2 and in my view, this petition can be disposed of at the stage of admission itself.
Petitioner has prayed for quashing the order dated 18-08-2010 passed by learned Sessions Judge, Nalanda at Bihar Sharif in Cr. Rev. No. 192 of 2010 by which and whereunder, he dismissed the aforesaid Cr. Rev. for non- Patna High Court Cr.Misc. No.43164 of 2010 (3) dt.23-07-2012 prosecution.
Briefly stated the fact of the case is that the petitioner was made accused in Complaint Case No. 30 C of 2004 in which, he stood on trial and after examination of prosecution witnesses, his statement u/S 313 of the Cr.P.C. was recorded and in the aforesaid statement, one specific question was put by learned Magistrate to petitioner as to whether he had withdrawn the amount fraudulently from the account of one, Brahmdeo Prasad Sinha between 1999 to 19-01-2004 after producing forged documents and in reply of aforesaid question, he answered in affirmative and again, when he was asked to speak in his defence, the petitioner only stated that he was innocent. After examination of the petitioner u/S 313 of the Cr.P.C., he adduced his evidence in his defence and argument of the complainant was heard but later on, a petition was filed on behalf of the petitioner to give him an opportunity to state the circumstances in which, he withdrew the above-said amount. The above-said petition of petitioner was rejected by Sri Manoj Kumar No.-5, J.M.-Ist Class, on 30-04-2010 against which, Cr. Rev. No. 192 of 2010 was preferred but when the aforesaid Cr. Rev. petition was called out for Patna High Court Cr.Misc. No.43164 of 2010 (3) dt.23-07-2012 hearing on the point of admission, none appeared on behalf of the petitioner and, accordingly, Cr. Rev. No. 192 of 2010 was dismissed for non-prosecution.
The contention of learned counsel for the petitioner is that the learned Sessions Judge, Nalanda at Bihar Sharif had got no power to dismiss the Cr. Rev. for non - prosecution and the learned Sessions Judge ought to have decided the aforesaid Cr. Rev. on merit. He further submitted that sufficient opportunity to bring the essential facts, was not given to the petitioner by learned trial court at the time of recording his statement u/S 313 of the Cr.P.C. and there was vagueness in the statement recorded u/S 313 of the Cr.P.C. because the petitioner admitted this fact that he withdrew the amount from the account of Brahmdeo Prasad Sinha but simultaneously, the petitioner stated that he was innocent and, therefore, it was incumbent duty of the learned court below to clarify the above-said ambiguity by putting further relevant question to the petitioner. In support of his contention, he referred a decision reported in 2008(1) East Cr. Cases 188 Supreme Court in which, it has been held by the Apex Court of this country that "question u/S 313 of the Cr.P.C. must be fair and couched Patna High Court Cr.Misc. No.43164 of 2010 (3) dt.23-07-2012 in form which an ignorant and illiterate person will understand and appreciate. Another decision cited on behalf of the petitioner is 2008(2) Cr. R. 140 (Del.) in which, it has been held that "the court is empowered to call accused to answer incriminating situation again but however, powers to call accused to answer questions more than once, after closure of prosecution evidence should not be used in a routine or mechanical manner."
On the otherhand, learned counsel appearing for Opposite party No. 2 refuted the above-said submissions of learned counsel for the petitioner and submitted that the statement of petitioner was recorded u/S 313 of the Cr.P.C. on 27-01-2007 and after one and a half years, the petitioner filed above-said petition, particularly, when the case of the petitioner was on the verge of disposal. It is further contended by him that as a matter of fact, the petitioner wants to delay the disposal of the case and that is why, he filed a petition before the learned Judicial Magistrate and when learned Judicial Magistrate rejected his petition, he preferred Cr. Rev. before learned Sessions Judge, Nalanda at Bihar Sharif who dismissed his Cr. Rev. for non- prosecution.
Patna High Court Cr.Misc. No.43164 of 2010 (3) dt.23-07-2012
Having heard the contentions of the parties, I have gone through the record.
It has rightly been submitted by learned counsel for the petitioner that learned Sessions Judge ought to have decided the aforesaid Cr. Rev. on merit and he had got no power to dismiss the Cr. Rev. for non-prosecution and, therefore, I am of the opinion, that learned Sessions Judge, Nalanda at Bihar Sharif committed an error in passing the order dated 18-08-2010 in Cr. Rev. No. 192 of 2010. Therefore, in the aforesaid circumstances, I think it proper to send the matter back to the learned Sessions Judge, Nalanda at Bihar Sharif for hearing the aforesaid Cr. Rev. No. 192 of 2010 on merit and, accordingly, without making any comment in respect of order dated 30-04-2010 passed by learned Judicial Magistrate-Ist Class, Hilsa, Nalanda in Complaint Case No. 30 C of 2004, the order dated 18-08- 2010 passed by learned Sessions Judge, Nalanda at Bihar Sharif in Cr. Rev. No. 192 of 2010 is, hereby, quashed.
Accordingly, learned Sessions Judge, Nalanda at Bihar Sharif is directed to hear the Cr. Rev. No. 192 of 2010 afresh and disposed of the same within a month from the date of receipt/production of a copy of the order. Patna High Court Cr.Misc. No.43164 of 2010 (3) dt.23-07-2012
Accordingly, this petition stands disposed of at the stage of admission itself.
(Hemant Kumar Srivastava, J) A.K.V./-