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1982 DIGILAW 111 (PAT)

Rajmani Singh v. Ram Briksha Singh

1982-09-13

P.S.SAHAY

body1982
JUDGMENT : Prem Shankar Sahay, J. - Both the applications have been heard together and will be governed by this common JUDGMENT : and ORDER :. 2. A criminal case had been instituted under sections 307, 379, 324, 147 and 148 of the Indian Penal Code against the five opposite parties in Criminal Revision no. 261 of 1978, by Rajmani Singh the informant who is the petitioner in this revision application. Another case under Sections 25A and 27 of the Arms Act has been instituted on the statement of M. I. Beg, Officer Incharge, Harnaut Police Station against Ram Briksha Singh and Brij Mohan Singh who are opposite parties in Criminal Revision no. 271 of 1978. After investigation charge sheets were submitted in both the cases and they were pending trial. 3. In both the cases, petitions were filed on behalf of the Assistant Public Prosecutor that the State did not like to prosecute the accused persons on the ground of public policy and, therefore, a prayer for withdrawal was made under Section 321 of the Code of Criminal Procedure, 1973. Objections were filed on behalf of the petitioner in both the cases and a prayer was made to reject the petitions filed on behalf of the Assistant Public Prosecutor for withdrawal of the two cases. The learned Magistrate by the impugned ORDER :dated 10.2.1978 (in Criminal Revision no. 261 of 1978) allowed the application filed on behalf of the Assistant Public Prosecutor, who was incharge of the case and discharged the accused persons. Similar]y by the impugned ORDER :dated 19th December, 1977, the learned Sub-divisional Judicial Magistrate, allowed the application of the Public Prosecutor and discharged the two accused persons who are opposite parties in Criminal Revision no. 271 of 1978. 4. Being aggrieved by the aforesaid two ORDER :s, Rajmani Singh has filed these two revision applications which have been heard together. 5. These two cases came up for hearing before B. S. Sinha. J., on 24.11.1981, and Shri Chandi Prasad learned Counsel appearing on behalf of the opposite parties in both the applications raised a preliminary objection that the State was a necessary party in the cases and in absence of the State, these two applications in revision were not maintainable. 5. These two cases came up for hearing before B. S. Sinha. J., on 24.11.1981, and Shri Chandi Prasad learned Counsel appearing on behalf of the opposite parties in both the applications raised a preliminary objection that the State was a necessary party in the cases and in absence of the State, these two applications in revision were not maintainable. In view of the preliminary objections, learned Counsel for the petitioner prayed for time and filed an application on behalf of the petitioner in both the cases on 25.11.1981 for impleading the State of Bihar as one of the party. This application in both the cases were filed under Section 482 of the Code of Criminal Procedure and under Section 5 of the Limitation Act and in paragraph 6 of the petition it is stated as follows: "3. That the State of Bihar is a necessary party. Hence it is desirable for the ends of justice that the State of Bihar may be added as an opposite party in this case." Rejoinder petitions have been filed on behalf of the opposite parties in both the cases with a prayer that the application filed by the petitioner on 25.11.1981 in both the cases should be rejected having been filed out of time. 6. Mr. Chandi Prasad, learned Counsel for the opposite party, in both the cases has submitted that the two cases were instituted on police report and charge-sheets were submitted and in course of the trial petitions in the two cases were filed on behalf of the State by Assistant Public Prosecutor in charge of the cases for withdrawal of the cases. The State was a necessary party and in absence of the State no relief can be granted to the petitioner. Next it has been contended that the cases were instituted on police report and the informant has no locus standi to file these two revision applications. It has been further urged that in the case under the Arms Act, the petitioner was not even the informant. In support of his contention, reliance has been placed on a decision of this Court in the case of Dr. Kamleshwar Prasad Nayak v. Shyam Sunder Chaudhary (1981 B.L.J.R. 277). This decision undoubtedly supports the contention raised on behalf of the opposite party. In support of his contention, reliance has been placed on a decision of this Court in the case of Dr. Kamleshwar Prasad Nayak v. Shyam Sunder Chaudhary (1981 B.L.J.R. 277). This decision undoubtedly supports the contention raised on behalf of the opposite party. Now the main point for consideration will be whether the application filed on behalf of the petitioner on 25.11.1981 should be allowed. It is also admitted on behalf of the petitioner in both the cases that the State is a necessary party to the two cases. 7. The two impugned ORDER :s were passed on 19.12.1977 and 10.2.1978, and the State of Bihar was not made party in both these applications. Under Article 131 of the Indian Limitation Act, limitation for filing such application is 90 days, and it will be relevant to mention here that this Act has come into force in 1973 (sic) and prior to that there was no fixed period for filing revision petitions under the Limitation Act and it was only under the High Court Rules. In the applications filed on behalf of the petitioner, it has been stated that due to bona fide mistake of the Counsel, the State of Bihar was not added as a party. After the applications for withdrawal were allowed by the court below in the two cases, a valuable right accrued to the opposite parties. In the limitation petition except the ground of bona fide mistake, nothing has been mentioned. Moreover, it has been filed three years after the filing of the revision applications. In these circumstances, it will not be proper for me to allow these applications, at this stage. 8. Learned Counsel appearing on behalf of the petitioner has drawn my attention to a Full Bench decision of this Court in the case of the King v. Parmanand and others (A.I.R. 1949 Patna 222) in which it has been held that if the court refuses the prayer of the Public Prosecutor to withdraw the case and the Public Prosecutor declines to assist the Court, the Court has the power under Section 495 of the Code of Criminal Procedure 1898, to permit the prosecution to be conducted by any other person, either personally or by a pleader. Learned Counsel has, therefore, submitted that the withdrawal from the prosecution does not mean withdrawal from the case. Learned Counsel has, therefore, submitted that the withdrawal from the prosecution does not mean withdrawal from the case. This decision, in my opinion, does not help the petitioner, because in these two cases the prayer of the Assistant Public Prosecutor was allowed and the two cases were permitted to be withdrawn. Thereafter if the informant really wanted to challenge those ORDER :s, it could be done by impleading necessary parties including the State of Bihar at whose instance the prosecution in both the cases against the accused was withdrawn. 9. Thus, the two petitions filed on behalf of the petitioner in both the cases on 25.11.1981 have no merit at all and have to be rejected. 10. The result will be that in absence of the State of Bihar which is a necessary party in the two cases, no effective ORDER :can be passed in these cases. In that view of the matter both the applications are, accordingly, dismissed.