Patna High Court
Akbar Khan & Anr vs State Of Bihar & Anr on 17 May, 2010
Author: Rakesh Kumar
Bench: Rakesh Kumar
Criminal Miscellaneous No.31791 OF 1999
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In the matter of an application under section 482 of the
Code of Criminal Procedure.
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1.AKBAR KHAN
2.Nasir Khan
Both sons of late Halim Khan, resident of
Village-Usari Mugal Toli, P.S.-M.H.Nagar,
Dist.-Siwan ...... ......Petitioners
Versus
1.STATE OF BIHAR
2.Mohd. Ashik son of Md. Jalil, resident of
Usari Mugal Toli, P.S.-M.H. Nagar
Dist.-Siwan ....... .....Opp.Party.
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For the petitioners: Mr. Akbar Khan
For the State: Mr. Braj Kishore Pd.,Addl. P.P.
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PRESENT
THE HON'BLE MR. JUSTICE RAKESH KUMAR
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Rakesh Kumar, J.Two petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 20.4.1999 passed by Sri B.N.Tiwari, Judicial Magistrate, Siwan in Complaint Case No.C-341 of 1999/T.R. No.886 of 1999. By the said order the learned Magistrate, has taken cognizance for the offences under sections 341 and 392 of the Indian Penal Code.
2. Short fact of the case is that opposite party no.2 filed a complaint vide Complaint Case No.C-341 of 1999 alleging therein that on the date of occurrence and time i.e. 22.3.1999 at about 6.30 P.M., while he was returning home, he was intercepted by the petitioners and 3-4 unknown persons. The complainant was put in fear and one of the accused took out a knife and put the same on the neck of the complainant and thereafter by force firstly 2 took Rs.2,200/- (rupees two thousand two hundred) from his pocket as well as a wrist watch was taken by the accused persons. It was said by the accused persons that the complainant had earned huge money from Dubai. In the said occurrence, as alleged in the complaint petition, the complainant was brutally assaulted by fists by the accused persons. In the complaint petition it was also disclosed that on earlier occasion also the complainant was assaulted by the accused persons for which he had lodged information in the police station and thereafter a proceeding under section 107 of the Code of Criminal Procedure was initiated. After filing of the complaint petition, the complainant was examined on solemn affirmation and in support of the complaint three witnesses were examined as enquiry witnesses. After completion of enquiry, the learned Magistrate by its order dated 20.4.1999 took cognizance of the offences under section 341 and 392 of the Indian Penal Code. Of course, against the order of cognizance the petitioner preferred a revision before the court of learned Sessions Judge, Siwan and that revision was rejected by the learned Additional Sessions Judge, Siwan, neither learned counsel for the petitioners has orally submitted for quashing of the order of rejection of the revision petition nor in paragraph-1 of the petition the petitioners have made a statement for quashing of the revisional order.
3. Mr.Shailendra Kumar Singh, learned counsel for the petitioners, while challenging the order of cognizance, submits that the order impugned is liable to be set aside on the ground that 3 prosecution has been initiated by the opposite party no.2 maliciously. He submits that in the complaint petition it has been admitted that even prior to the filing of the present complaint petition, litigation in between the petitioners and the complainant was going on. He further submits that without any material the learned Magistrate has incorrectly taken cognizance of the offences. Learned counsel, while referring to the judgment of Hon'ble Supreme Court reported in A.I.R. 1998 S.C.128 (M/s Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and Others) and 2002 (1) SCC 241 (S.W.Palanitkar & Others Vs. State of Bihar & Another), submits that summoning of an accused is a serious matter and, as such, before passing the order or summoning the petitioners, the learned Magistrate was required to examine the materials available on the record and after being fully satisfied with the commission of offence, the learned Magistrate was required to pass an order of cognizance and directed for issuance of summons. According to the learned counsel for the petitioners, no offence is made out and, as such, he has prayed for quashing of the order of cognizance.
4. Mr.Braj Kishore Prasad, learned Additional Public Prosecutor, has opposed the prayer of the petitioners. He submits that the present petition is fit to be rejected on the sole ground that despite the fact that revision against the order of cognizance was already rejected by the learned Additional Sessions Judge by its order dated 13.9.1999, the petitioners have not asserted either in paragraph-1 or in the prayer portion of their petition for quashing 4 of the said order. He submits that learned counsel for the petitioners, during the course of argument, has not whispered regarding revisional order. He also referred to annexure-2 series to the petition which are typed copy of the statement of the complainant recorded on solemn affirmation as well as deposition of three enquiry witnesses and submits that on perusal of the complaint petition as well as annexure-2 series it is evidently clear that offences under sections 341 and 392 of the Indian Penal Code was committed in the occurrence and the learned Magistrate, while taking cognizance of the offences, has committed no mistake. The impugned order is in accordance with law, which requires no interference by this court.
5. Besides hearing learned counsel for the parties, I have also examined the materials available on the record. First of all it would be proper to mention that while revision against the order of cognizance was rejected by the learned Additional Sessions Judge it was required on the part of the petitioners to at least make prayer for quashing of the said order, but the petitioners failed to make such assertion in the petition. Moreover, once revision was already rejected against the order of cognizance, I am of the view that the present petition, which was filed in the garb of a petition under section 482 of the Code of Criminal Procedure, was not maintainable since it amounts to filing of second revision which is prohibited under section 397(3) of the Code of Criminal Procedure. However, I am not recording any finding on the point of maintainability of the present petition. I have examined the 5 materials brought on record by the learned counsel for the petitioners. Annexure-1 which is complaint petition read with annexure-2 series categorically makes out a case of the offence under sections 341 and 392 of the Indian Penal Code. For the time being, if it is assumed that the learned Magistrate, while passing the order of cognizance, had not recorded its reason in detail, even on the basis of materials which have been brought on record before this court, this court is satisfied that there were sufficient materials for proceeding against the petitioner and the learned Magistrate has rightly passed the order of cognizance. So far as the judgment which has been referred to by the learned counsel for the petitioners is concerned, there is no dispute on the question of law. It is true that summoning of an accused is a serious matter but at the same time it is also required that if there is material on record to suggest commission of offence it is obligatory on the part of the concerned court to proceed in the case against the accused persons. After examining the materials available on the record as well as in view of the fact that the petitioners had lost his revision before the revisional court which was filed against the order of cognizance there is no requirement for this court to interfere with the order of cognizance.
6. In the result, I do not find any merit in the present petition and the petition stands rejected.
7. In view of rejection of this petition, the interim order of stay dated 29.2.2000 stands automatically vacated.
8. Keeping in view the fact that the matter remained 6 pending before this court for more than ten years, even at the stage of cognizance it is proper to direct the court below to proceed with the case expeditiously and conclude the same as early as possible.
Let a copy of this order be sent to the court below forthwith.
Patna High Court ( Rakesh Kumar, J.)
The 17th May, 2010
NAFR/Md.S.
S