Patna High Court - Orders
Alok Kumar Prasad vs The State Of Bihar on 23 January, 2013
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.6995 of 2011
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Alok Kumar Prasad
.... .... Petitioner/s
Versus
The State Of Bihar
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : ( In person )
For the Opposite Party/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
5 23-01-2013In this case, the petitioner is challenging the order dated 26th November 2010 passed by the Judicial Magistrate, 1st Class, Patna on a petition filed under Section 319 of the Code of Criminal Procedure (hereinafter, referred to as the' Code') which has been rejected being declared as not maintainable.
The complainant appeared in person and argued his case and at the end of argument filed written argument in support of his contention. The complainant filed a complaint case where allegation has been made that Vivek Saraogi, accused No.4 persuaded/forcefully asked the petitioner to became consultant on payment of requisite fee on chain basis. He gave the promise of other benefit and also promised to give personal insurance cover age for Rs.1,00,000/- (one lacks). Relying on his version/ assurance, the complainant-informant became consultant on payment. Later on he renewed membership by paying requisite 2 Patna High Court Cr.Misc. No.6995 of 2011 (5) 2/6 amount. Unfortunately, petitioner met with an accident on 18 th October 2010, which caused fracture to his right femoral bone and he was treated at Orthopedic and Hand Surgery Clinic in Patna in which he underwent major operation. He made query from Vivek Saraogi but he always gave evasive, misleading, concocted reply and thereby embezzled the money paid as a premium.
On the basis of the complaint petition, including the SA, the court took cognizance as has been claimed by the petitioner against the accused persons, including Vivek Saraogi by order dated 25th February 2005 and the court directed for issuance of notice and asked the complainant to submit the requisites for service of notice.
It appears that on receipt of notice by Vivek Saraogi an application dated 10th May 2005 was filed where statement has been made that no cognizance has been taken against Vivek Saraogi but it appears, due to inadvertence, Office issued summons to him. The same was replied by the complainant- petitioner on 11th July 2005 where prayer has been made by the complainant to reject the application filed by Vivek Saraogi, as the Office had rightly issued notice and, as such, the question of recall of order of summons issued against him did not arise. The said reply was answered by Vivek Saraogi stating that the court 3 Patna High Court Cr.Misc. No.6995 of 2011 (5) 3/6 had not taken cognizance but due to slip of pen on the part of the office, the summons was issued against Vivek Saraogi. The court below considered the petition filed by Vivek Saraogi and reply of the petitioner, by order dated 10th February 2010 found that the cognizance was not taken against Vivek Saraogi and due to mistake and inadvertence, on the part of Office, summons was also issued against him and, accordingly, for ends of justice the petition dated 10th May 2005 was allowed and, accordingly, summons against Vivek Saraogi was recalled.
Against that order, petitioner filled Cr. Rev. No. 137 of 2010 before the Sessions Judge who vide order dated 14 th Sept ember 2010 refused to interfere with the order of the Magistrate holding that the Magistrate has not committed any wrong, as the Office due to inadvertence had issued summons to Vivek Saraogi and suggested the complainant, if he so desired, he could file application u/s 319 of the Code and the court below would decide the case in accordance with law. After this order, the petitioner filed an application u/s 319 of the Code on 14 th September 2010 where the petitioner has submitted that the court of Sessions in revision , as aforesaid, directed to file application u/s 319 of the Code, the court will consider the case on its own merit. The application filed u/s 319 of the Code was objected by Vivek 4 Patna High Court Cr.Misc. No.6995 of 2011 (5) 4/6 Saraogi and the court ultimately rejected the application holding that once the Magistrate, at the stage of taking cognizance after enquiry u/s 202 of the Code refused to issue summons against the proposed accused persons, then he will be out of reach of Section 319 of the Code, as they would not come within the term of Section 319 'not being accused' and the petition was dismissed.
The petitioner has challenged the order contending that the Magistrate ought to have allowed the application u/s 319 of the Code as sufficient materials are available to issue summons. In the written argument, the petitioner has submitted that the court has no power to review his own order under the Code of Civil Procedure and, as such, review or recall of the order is illegal and not sustainable in law.
Learned counsel for the State submitted that this Court is not considering the order by which the lower court has withdrawn the summons issued against Vivek Saraogi, rather the impugned order is dealing with the application filed u/s 319 of the Code. It has further been submitted that the power u/s 319 of the Code can be exercised at the stage of enquiry and trial and the trial has not begun. If the sufficient material would come against Vivek Saraogi, during trial proper application could be filed by the petitioner, the court will consider the merit and would pass the 5 Patna High Court Cr.Misc. No.6995 of 2011 (5) 5/6 order in accordance with law. It is not the proper stage for filing of the application u/s 319 of the Code, rather the stage would come at later and, as such, the present application is not maintainable in law.
Having considered the rival contention of the parties, as it is very clear from Section 319 of the Code if the material comes during the trial are sufficient so as to give an inference that there would be probability of conviction of the person who has not been summoned, can be asked to appear and to face trial.
In the case of Michael Machando reported in (2000)SCC 282, it has been held by the Hon'ble Supreme Court ilf during trial materials comes against him leading probability of conviction, the court would not be incompetent to issue summons to the person to stand the trial. In the present case, the trial has not begun. If any such material would come against Vivek Saraogi, the petitioner would be at liberty to file an application u/s 319 of the Code and the court below would examine the materials that would come through witnesses and test it as to whether materials are sufficient for giving inferenceof probability/likelihood of conviction in trial. If the court would find prima facie and sufficient materials, the court would be at liberty to pass a reasoned order.
6 Patna High Court Cr.Misc. No.6995 of 2011 (5)6/6
With this observation and direction, this petition is disposed of.
Jay/- (Shivaji Pandey, J)