Patna High Court - Orders
Ranjeet Kumar vs The State Of Bihar & Ors on 5 November, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.2289 of 2011
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Ranjeet Kumar, S/O Late Baidya Nath Gami, R/O Vill- Bhagwatipur, P.S-
Pandaul, Distt- Madhubani
.... .... Petitioner
Versus
1. The State Of Bihar
2. Tek Narayan Mahto, S/O Sri Baldeo Mahto, R/O Vill- Bhagwanpur, P.S-
Pandaul, Distt- Madhubani
3. Prem Lal Safi, S/O Late Bouku Safi, R/O Vill- Bhagwanpur, P.S-
Pandaul, Distt- Madhubani
4. Raj Kumar Safi, S/O Prem Lal Safi, R/O Vill- Bhagwanpur, P.S-
Pandaul, Distt- Madhubani
5. Birendra Mahto, S/O Baldeo Mahto, R/O Vill- Bhagwanpur, P.S-
Pandaul, Distt- Madhubani
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Ashok Kumar Karna,
Mr. Ravindra Kumar Singh, Advocates.
For the Opposite Party Nos.2 to 5:Mr. Gagan Deo Yadav, Advocate.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
5 05-11-2012Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for opposite party nos. 2 to 5.
2. This application has been filed for quashing the order dated 21.5.2010 passed in Criminal Revision N.162 of 2010 by the learned Sessions Judge, Madhubani by which he has set aside the order dated 2.2.2010 passed by the Sub Divisional Judicial Magistrate, Madhubani in Pandaul P.S. Case No.161 of 2008, G.R. No.1554 of 2008 by which he has taken cognizance against the opposite party nos. 2 to 5 Patna High Court Cr.Misc. No.2289 of 2011 (5) dt.05-11-2012 2 under Section 384 of the Indian Penal Code and has allowed the revision application.
3. From the record it appears that a complaint petition was filed by Baidhyanath Gami vide Complaint Case No. 701 of 2008 against opposite party nos. 2 to 5 and after his death the petitioner was added in his place. The said complaint petition was referred to the police under section 156(3) of the Code of Criminal Procedure (hereinafter referred to as 'the Code') and the police after investigation registered the case vide Pandaul P.S. Case No. 161 of 2008 for the offences under sections 341, 323, 504, 379 and 384/34 of the Indian Penal Code. In the complaint petition- cum First Information Report it has been alleged that the complainant was in Government service and after retirement he was getting pension. It has been alleged that on the fateful date while he was coming from Bhagwati Bazar, in the way, Tek Narayan Mahto and Prem Lal Sathi intercepted the complainant and demanded money in extortion. When the complainant tried to raise alarm other accused persons surrounded him and started hurling abuses and also assaulted with fists and slaps. The complainant under threat and terror requested the accused persons to take the money Patna High Court Cr.Misc. No.2289 of 2011 (5) dt.05-11-2012 3 and leave him whereupon the accused person, namely Tek Narayan Mahto took out Rs. 1800/- from his front pocket and also snatched a chain worth Rs.6,000/- from his neck and threatened the complainant if he filed any case, being a member of scheduled caste, he would trap him in a false and fabricated case. Other accused persons threatened the complainant that if he had gone to the police station then he would have to face the dire consequences. The case was sent for investigation by the police and the police after investigation submitted charge-sheet under sections 341, 323 and 504/34 of the Indian Penal Code whereas the Chief Judicial Magistrate, Madhubani vide order dated 26.9.2008 took cognizance against them under sections 341, 323, 384 and 504/34 of the Indian Penal Code on the basis of the material in the case diary. The order of cognizance was challenged by opposite nos. 2 to 5 before the revisional court vide Cr. Revision No. 1116 of 2008 and by order dated 28.3.2009 the learned Sessions Judge did not find any irregularity or impropriety in the order of cognizance and refused to interfere with the order of cognizance.
4. At the stage of framing of charge an application for discharge was filed before the Sub Divisional Magistrate, Patna High Court Cr.Misc. No.2289 of 2011 (5) dt.05-11-2012 4 Madhubani under section 239 of the Code making a prayer to discharge opposite party no.2 to 5. The Sub Divisional Judicial Magistrate examined the case diary where in paragraph nos. 5, 7, 19, 20 and 26 considered the statement of the witnesses and rejected the discharge application vide order dated 2.2.2010.
5. Being aggrieved by the aforesaid order opposite party nos. 2 to 5 filed criminal revision vide Criminal Revision No.162 of 2010 and the revisional court vide order dated 21.5.2010 allowed the petition and thereby the order of cognizance for offence under Section 384 of the Indian Penal Code was set aside holding that there was no sufficient material in the case diary to constitute the offence under Section 384 of the Indian Penal Code.
6. Learned counsel for the petitioner submits, in the garb of considering the discharge application, the revisional court has virtually reviewed the earlier order of cognizance which was reached to its finality by the order of revisional court and there was no justification rather permissible in law for the revisional court to reconsider or review the order of cognizance after its finality. He has further submitted that the learned court below even at the stage of considering the Patna High Court Cr.Misc. No.2289 of 2011 (5) dt.05-11-2012 5 discharge application was not required to examine the material meticulously rather he was only required to see as to whether strong suspicion was made our or not. The court was not justified while deciding the discharge application to act as mini trial as proof beyond reasonable doubt will be seen at the trial stage.
7. Learned counsel for the opposite party vehemently opposed the arguments advanced on behalf of learned counsel for the petitioner and submitted that the sessions court rightly found, there was no material before the Magistrate to take cognizance under section 384 of the Indian Penal Code. He also submitted materials are not sufficient for constituting offence under section 384 of the Indian Penal Code against opposite party nos. 2 to 5.
8. From the order it appears though an application for discharge was filed but on perusal of the impugned order it appears the revisional court was considering the order of cognizance and found that the materials were not available in the case diary and held offence under section 384 of the Indian Penal Code was not made out and the Magistrate wrongly took cognizance under section 384 of the Indian Penal Code and wrongly refused to discharge opposite party Patna High Court Cr.Misc. No.2289 of 2011 (5) dt.05-11-2012 6 nos. 2 to 5 from section 384 of the Indian Penal Code. It is well settled that the order in a criminal court has no power to reconsider the order of cognizance when it reached to its finality. There was no justification for the revisional court to reconsider the order of cognizance and passed the order virtually set aside the order of cognizance as the court had taken cognizance under section 384 of the Indian Penal Code. The court in the present case was only required to see as to whether facts constitutes a case of strong suspicion as has been held by the Hon'ble Supreme Court in the case of P. Vijiya Vs. State of Kerla, reported in 2010(2) SCC 398 and was not required to examine material meticulously as has been held by the Hon'ble Supreme Court in the case of State of Orissa Vrs. Debendra Nath Padhi, reported in 2005(1) SCC 568 and as such this Court feels that the revisional court has committed a jurisdictional error in reviewing the order of cognizance and has passed the impugned order without considering the material collected giving inference of strong suspicion.
9. Accordingly the order dated 21.5.2010 passed in Criminal Revision No.162 of 2010 is set aside and the revisional court is directed to pass a fresh order in Patna High Court Cr.Misc. No.2289 of 2011 (5) dt.05-11-2012 7 accordance with law and the court of the Magistrate is directed to proceed with the trial.
10. Accordingly this application is allowed.
Vinay/- (Shivaji Pandey, J)