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1968 DIGILAW 185 (PAT)

Kishun Prasad v. State Of Bihar

1968-11-29

B.N.JHA

body1968
Judgment 1. This is an application to quash the complaint filed by the District and Sessions Judge of Hazaribagh (Annexure-2 under provisions of Sec. 479-A). It appears that one Nunulal Prasad, driver, was tried for an offence under Sections 304 and 279 of the Indian Penal Code for driving a car in a rash and negligent manner, and thereby killing a woman. The accused was convicted by the Munsif-Magistrate, First Class of Giridih, on the 26th July, 1966 and sentenced to undergo rigorous imprisonment for six months under Sec.304, but no separate sentence was passed under Sec.279 of the Indian Penal Code. The accused (driver) filed Criminal Appeal No. 224 of 1966 in the Court of the Sessions Judge of Hazaribagh, who allowed the appeal and set aside the order of conviction passed by the Munsif-Magistrate by his judgement and order dated the 18th December, 1967. In the judgement, he mentioned that the evidence given by the petitioner who was P.W. 7 in the case did not state the truth rather a false evidence in order to shield the accused. Therefore, in the judgement itself he directed that a complaint should be filed against the petitioner for being tried under Sections 193 and 211 of the Indian Penal Code. In pursuance of this order, the learned Sessions Judge filed a complaint (Annexure-2) on the 6th February, 1968 before the Sub-Divisional Officer of Giridih under Sections 193 and 211 of the Indian Penal Code who took cognizance of the case on that very date and the case was transferred to K.C. Prasad, Munsif-Magistrate, First Class of Giridih, who issued summons to the petitioner for appearance in the case. On receipt of the summons, the petitioner learnt about the filing of the complaint by the Sessions Judge before the Sub-Divisional Magistrate of Giridih. Hence, petitioner has come up in this Court. 2. Learned counsel for the petitioner has submitted that the main grievance of the petitioner is that the learned Sessions Judge was not justified in filing complaint against the petitioner without giving him an opportunity of being heard. Unfortunately, in this case, the learned Sessions Judge did not issue any notice of show cause. The petitioner learnt about the criminal prosecution after he got summons from the Court of Sri K.C. Prasad, Munsif-Magistrate of Giridih. The trying Magistrate convicted the accused. Unfortunately, in this case, the learned Sessions Judge did not issue any notice of show cause. The petitioner learnt about the criminal prosecution after he got summons from the Court of Sri K.C. Prasad, Munsif-Magistrate of Giridih. The trying Magistrate convicted the accused. Thereafter he filed an appeal before the Sessions Judge who found the evidence given by the petitioner as unreliable and directed the filing of complaint against the petitioner in the judgement by virtue of the powers conferred on the appellate Court under the provisions of Sec. 479-A(5) of the Code of Criminal Procedure, which reads as follows : "In any case, where an appeal has been preferred from any decision of a Civil, Revenue or Criminal Court but no complaint has been made under Sub-Section (1), the power conferred on such Civil, Revenue or Criminal Court under the said Sub-Section may be exercised by the Appellate Court; and where the Appellate Court makes such complaint, the provisions of Sub-Section (1) shall apply accordingly, but no such order shall be made, without giving the person affected thereby an opportunity of being heard." This Sub-Section clearly provides that no order for filing complaint shall be made, without giving the person affected thereby an opportunity of being heard, which the learned Sessions Judge did not follow. He should have heard the petitioner before filing the complaint. Therefore, the complaint filed by the learned Sessions Judge is illegal and without jurisdiction and must be quashed. The above view also finds support from the decision of the Supreme Court in the case of Dr. B.K. Pal Chaudhry V/s. State of Assam, AIR 1960 SC 945, wherein it has been held that it is the duty of an appellate Court acting under these Sub-Sections to record a finding that in its opinion intentionally false evidence had been given that for the eradication of the evils of perjury and in the interests of justice it is expedient that there should be a prosecution for the offence and also to give the person against whom it is intended to proceed a hearing before making the complaint in respect of the offence. Therefore, the contention of learned counsel is well founded and must be accepted. Therefore, the contention of learned counsel is well founded and must be accepted. 3 In the circumstance stated above, the application is allowed, the complaint (Annexure-2) filed by the learned Sessions Judge of Hazaribagh (Camp Giridih) on the 6th February, 1968 before the learned Sub-Divisional Magistrate of Giridih is quashed, and the subsequent order of the learned Sub-Divisional Magistrate of Giridih dated the 6th February, 1968, taking cognizance of the case under Sections 193 and 211 of the Indian Penal Code and other proceedings against the petitioner upon such complaint are also set aside. It will be, however, open to the learned Sessions Judge, if he so like to file a complaint, he may do so, but after giving the petitioner an opportunity of showing cause and deciding his objection to the filing of the complaint.