Patna High Court
Tuntun Singh & Ors vs The State Of Bihar & Anr on 20 January, 2012
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.28263 of 2009
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1. Tuntun Singh, S/o Sudarshan Singh
2. Ram Bahadur Singh, son of Sudarshan Singh
3. Tej Bahadur Singh, S/o Sudarshan Singh
4. Rana Singh, son of Sudarshan Singh
5. Bari Devi, wife of Ram Bahadur Singh,
6. Pramod Singh, son of Sukhdeo Singh
All residentce of Village + P.S. Daudpur, District-Saran.
.... .... Petitioners
Versus
1.The State Of Bihar
2. Baccha Singh, son of Kailash Pati Singh, resident of village-
Harshpura, P.S. Daud Nagar, District-Saran, presently residing
at village-Dumduma, In the western side of Daudpur Railway
Station, P.O. + P.S. - Daudpur, District-Saran.
.... .... Opposite Parties.
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Appearance :
For the Petitioners : Mr. Anshuman
For the Opposite Party : Mr. Nawal Kishore Singh, Adv.
Dated: 25th day of January, 2012
CORAM: HONO'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA
ORAL JUDGMENT
(Per: HON'BLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA)
1. Petitioners, while invoking the extra-ordinary
jurisdiction of this court vested under Section-482 of the
Cr.P.C. challenged the impugned order dated 20-06-2009
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passed by Additional Sessions Judge-IX, Chapra in Cr.
Revision No. 148 of 2007 by which and whereunder, he
dismissed the aforesaid revision petition on the ground of
maintainability and the petitioners have also challenged the
order dated 03-04-2007 passed by learned Chief Judicial
Magistrate, Chapra in Complaint Case No. 847 of 2007 by
which and whereunder, learned Chief Judicial Magistrate,
Chapra having found prima facie case under Sections-147,
148, 323, 420, 427, 436 of the Indian Penal Code against
petitioners and others ordered to issue process against
them to procure their attendance for trial.
2. The brief facts to file this quashing petition is
that the opposite party No. 2 namely, Bachcha Singh filed
complaint case No. 847 of 2007 in the court of Chief Judicial
Magistrate, Chapra, Saran against petitioners and others
alleging therein that on 30-03-2007 at about 11.00 a.m.
accused, Prayag Singh alongwith police constables came at
the Bathan of the opposite party No. 2 and asked him to
vacate the aforesaid Bathan as the S.D.M. had already
declared possession of family members of petitioner No. 2
on the above-stated Bathan and also threatened the
opposite party No. 2 to face the consequences if he failed to
vacate the possession of above-said land and when the
Patna High Court Cr.Misc. No.28263 of 2009 dt.20-01-2012
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opposite party No. 2 made protest, petitioners assaulted him
with fist and slaps and also set his Baithaka on fire as a
result of which, all the belongings of the said Baithaka burnt
to ashes causing damage to the opposite party No. 2.
3. The aforesaid complaint case was filed in the
court of learned Chief Judicial Magistrate, Chapra on 02-04-
2007 and the learned Chief Judicial Magistrate, Chapra kept
the aforesaid complaint case in his file after recording the
statement of opposite party No. 2 on solemn affirmation and
on the same day, he closed the inquiry and after that, on 03-
04-2007, he passed the impugned order in the manner as
stated above.
4. Against the impugned order dated 03-04-
2007, petitioner No. 1 preferred Cr. Revision No. 148 of
2007 which was dismissed by learned Additional Sessions
Judge-IX, Chapra vide impugned order dated 20-06-2009
holding that the quashing petition of the petitioners preferred
against impugned order dated 03-04-2007 had already been
dismissed by this court and since the revision petition had
been filed against an interlocutory order, the revision petition
is not maintainable.
5. Petitioners challenged both the above-said
impugned orders i.e. impugned order dated 03-04-2007
Patna High Court Cr.Misc. No.28263 of 2009 dt.20-01-2012
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passed by learned Chief Judicial Magistrate, Chapra by
which he finding prima facie case, ordered to issue
processes against the petitioners and other accused as well
as impugned order dated 20-06-2009 passed by learned
Additional Sessions Judge-IX, Chapra by which he
dismissed the Cr. Rev. No. 148 of 2007 on the basis of
above-said two grounds.
6. Learned counsel appearing for petitioners
submitted that petitioners had never filed any Cr. Misc. Case
against impugned order dated 03-04-2007 but in spite of
that learned Additional Sessions Judge-IX, Chapra
dismissed the revision petition of the petitioners on the
above-said grounds.
7. It is further contended by him that the learned
Chief Judicial Magistrate, Chapra without recording the
statements of witnesses of opposite party No. 2 passed the
impugned order dated 03-04-2007 in very haste manner,
particularly, in the circumstances, when Section-436 of the
Indian Penal Code is an offence exclusively triable by the
court of sessions and there is mandate of section-202(2) of
the Cr.P.C. that if the offence complained of, is triable by the
court of sessions, the inquiring Magistrate is duty bound to
call upon the complainant to produce all his witnesses and
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examined them on oath but in the present case, admittedly,
learned Chief Judicial Magistrate has passed the impugned
order only on the statement of complainant and did not ask
the complainant to produce his witnesses cited in the
complaint petition and, therefore, learned Chief Judicial
Magistrate, committed an error in passing the impugned
order. It is further contended by him that very face of the
complaint petition discloses that the complaint bearing
Complaint Case No. 847 of 2007 has been filed by opposite
party No. 2 on account of land dispute. So, even if the
contents of complaint petition assumed to be true, then also,
it is obvious that the aforesaid complaint case has been filed
by the opposite party No. 2 with mala fide intention on
account of civil dispute.
8. On the other hand, learned counsel appearing
for the opposite party No. 2 supported the impugned orders
arguing that earlier co-accused, Prayag Singh had filed Cr.
Misc. No. 28236 of 2007 challenging the validity of
impugned order dated 03-04-2007 passed in Complaint
Case No. 847 of 2007 but the aforesaid Criminal
Miscellaneous case was dismissed with a liberty to the
aforesaid co-accused to raise his points before the trial court
or at the time of framing of charge but again, the petitioners
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challenged the impugned order dated 03-04-2007 before
learned Additional Sessions Judge-IX, Chapra by filing Cr.
Revision No. 148 of 2007 and, therefore, learned Additional
Sessions Judge has rightly observed that the Cr. Misc. case
which had been filed against the impugned order dated 03-
04-2007 had already been dismissed.
9. It is further contended by him that so far as
Section-202(2) Cr. P.C. is concerned, the same is not
mandatory in nature as held by the Apex Court of this
country in PLJR 2010 (3) SC 134 and, therefore, it was not
mandatory for learned Chief Judicial Magistrate, Chapra to
call upon all the witnesses of the opposite party No. 2 before
passing the impugned order.
10. Having heard the contention of the parties, I
have gone through the record.
11. Admittedly, the opposite party No. 2 filed
above-said Complaint Case No. 847 of 2007 on 02-04-2007
and on the same day, learned Chief Judicial Magistrate,
Saran at Chapra recorded the statement of opposite party
No. 2 on solemn affirmation and kept the record in his own
file closing the inquiry and on the very next day, i.e. on 03-
04-2007, he passed the impugned order by which he
ordered to issue process against the petitioners and other
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co-accused having found prima facie case for the offence
under Sectikons-147, 148, 323, 420, 427 & 436 of the Indian
Penal Code.
12. The word cognizance has not been defined
in Criminal Procedure Code rather Section-190 of the
Cr.P.C. describes the circumstance under which a
Magistrate may take cognizance of any offence. Section-
190 of the Cr.P.C. says that the Magistrate may take
cognizance of any offence upon receiving a complaint of
facts, which constitutes such offence, upon police report of
such facts, and upon information received from any person
other than a police officer or upon his own knowledge that
such offence has been committed.
13. Section 192 of the Cr.P.C. says that any
Chief Judicial Magistrate may, after taking cognizance of an
offence, make over the case for inquiry or trial to any
competent Magistrate subordinate to him.
14. Section-200 of the Cr.P.C. says that a
Magistrate taking cognizance of an offence on complaint
shall examine upon oath the complainant and the witnesses
present, if any, and the substance of such examination shall
be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the Magistrate.
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Therefore, it is abundantly clear from the aforesaid
provisions that cognizance of the offence is taken when the
complaint is filed before the Chief Judicial Magistrate and
the cognizance of the offence is taken under Section-190
Cr.P.C. Section-200 of the Cr.P.C. prescribes the procedure
as to how the complaint petition would be dealt with when it
is filed before a court. Section-200 Cr.P.C. comes into play
after taking of the cognizance and it is only meant for, to
inquire into the act complained of. Section-202 of the
Cr.P.C. says that any Magistrate, on receipt of a complaint
of an offence may postpone the issue of process against the
accused, and either inquire into the case himself or direct an
investigation to be made by a police officer or by such other
person as he thinks fit, for the purpose of deciding whether
or not there is sufficient ground for proceeding. Therefore,
Section-202 of the Cr.P.C. is not mandatory in nature and it
cannot be stated that in all the complaint cases, the court is
duty bound to proceed under Section-202 of the Cr.P.C. and
it can easily be said that if the court taking cognizance is
satisfied even after recording the statement of complainant
on solemn affirmation that there is sufficient ground for
proceeding, the court may order for issuance of processes
against the accused.
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15. In the present case, no doubt, on the very
next day of filing of the complaint petition, the learned Chief
Judicial Magistrate after recording the statement of opposite
party No. 2 on solemn affirmation, came to conclusion that a
prima facie case under Sections-147, 148, 323, 420, 427 &
436 of the Indian Penal Code is made out against the
petitioners and other accused and he did not proceed for
further inquiry but only on the ground that the learned Chief
Judicial Magistrate did not proceed to inquire into the matter
under Section-202 of the Cr.P.C. it cannot be said that the
learned Chief Judicial Magistrate, Saran, Chapra committed
an error in passing the impugned order dated 03-04-2007.
16. So far as non-examination of all the
witnesses of the complainant under Section-202 (2) of the
Cr.P.C. is concerned, I am of the opinion that when learned
Chief Judicial Magistrate did not proceed to record the
statement of complainant witnesses under Section-202
Cr.P.C., there was no necessity to record the statement of
all the witnesses of the opposite party No. 2. Moreover, as
held by the Apex Court of this country in Sheojee Singh Vs.
Nagendra Singh reported in 2010(3) PLJR SC 134 that
Section-202(2) of the Cr.P.C. is directory in nature and
therefore, I am of the opinion that the impugned order dated
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03-04-2007passed by learned Chief Judicial Magistrate, Saran, Chapra cannot be disturbed on the basis of non- examination of witnesses of the opposite party No. 2 in course of inquiry.
17. Admittedly, petitioners had not preferred any Cr. Misc. case against the order dated 03-04-2007 passed by learned Chief Judicial Magistrate, Saran at Chapra in Complaint Case No. 847 of 2007 but in spite of that, learned Additional Sessions Judge-IX, Chapra dismissed the Revision Petition No. 148 of 2007 on this ground that petitioners had preferred quashing petition against the above-said impugned order. In my view, learned Additional Sessions Judge-IX, Chapra committed an error in taking the aforesaid ground for dismissal of the Cr. Revision filed on behalf of the petitioners. Furthermore, I am of the opinion that learned Additional Sessions Judge-IX, Chapra committed an error in holding this fact that the Cr. Rev. No. 148 of 2007 is not maintainable because the same has been filed against interlocutory order. Now it is no longer res integra that the order for issuance of process is a revisable order and in catena of decisions of this court as well as Apex Court of this country, this has already been set at rest that order passed under Section-204 of the Cr.P.C. is a Patna High Court Cr.Misc. No.28263 of 2009 dt.20-01-2012 11 revisable order. Although, the learned Additional Sessions Judge, Chapra committed an error in holding that Cr. Rev. No. 148 of 2007 is not maintainable against the order dated 03-04-2007 passed by learned Chief Judicial Magistrate in Complaint Case No. 847 of 2007 but as I have already stated that there is no illegality in impugned order dated 03- 04-2007 passed by learned Chief Judicial Magistrate, Saran, Chapra in Complaint Case No. 847 of 2007 and, therefore, even if learned Additional Sessions Judge-IX, Chapra committed an error in passing the impugned order dated 30-06-2009 passed in Cr. Rev. No. 148 of 2007, then also, this quashing petition does not have any merit because in Cr. Rev. No. 148 of 2007, the impugned order dated 03-04-2007 passed in Complaint Case No. 847 of 2007 had been questioned by the petitioners and this court did not find any illegality in order dated 03-04-2007 passed in Complaint Case No. 847 of 2007.
18. On the basis of aforesaid discussions, I am of the opinion that this quashing petition is devoid of merit and must be dismissed and, accordingly, this quashing petition is dismissed.
19. Let this order be communicated to the court of learned Chief Judicial Magistrate, Chapra in connection Patna High Court Cr.Misc. No.28263 of 2009 dt.20-01-2012 12 with Complaint Case No. 847 of 2007 as well as to the court of learned Additional Sessions Judge-IX, Chapra in connection with Cr. Rev. No. 148 of 2007.
Patna High Court, Patna ( Hemant Kumar Srivastava, J.) Dated/ the 25th day of January, 2012 AKVishwakarma