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2001 DIGILAW 710 (PAT)

Kameshwar Paswan v. State Of Bihar

2001-08-08

PRABHAT KUMAR SINHA

body2001
Judgment PRABHAT KUMAR SINHA, J. 1. This is an application under Section 482 of the Code of Criminal Procedure preferred by Kameshwar Paswan and eleven others praying therein for quashing order dated 27.11.1999 recorded by learned Additional Chief Judicial Magistrate, Barh in Complaint Case No. 204C of 1995 filed by complainant Fula Devi under which petitioners were summoned to face trial for offence under Section 364 of the Indian Penal Code. 2. The facts of the case, in brief, are that Fula Devi filed a complaint petition on 7.8.1995 alleging therein that her husband Bishundeo Paswan had gone to the Court for doing pairvi. In a case but thereafter the accused persons abducted him for the purpose of killing him and for the purpose of realising ransom, information of which was given to the concerned police station where the accused persons were brought who promised before the complainant to bring back her husband within 15 days. Thereafter, she filed about 20 applications in the police station for institution of the case but in the meantime the petitioners continued assuring about return of her husband but they made a turn around refusing to return the husband on 6.8.1995. 3. The ground of the learned counsel for quashing the order is that obviously this complaint petition is vexatious being brought for settling scores with the accused persons with whom there were previous differences which was why for occurrence dated 23.5.1988, complaint petition was filed on 7.8.1995 also giving the names of her two sons, Anil Paswan and Arvind Paswan to be witnesses who were on the date of alleged occurrence mere children. 4. Learned counsel for the petitioners further pointed Annexure-3 which is a report of enquiry submitted by a Police Officer to the Assistant Superintendent of Police, Barh in which he opined that the allegations appeared not to be correct and it also appeared that the husband of the complainant who was still trackless, was living some where as hermit. Learned counsel for the petitioners also submitted that some of the accused, on the alleged date of occurrence were just kids. However, so far as this aspect is concerned, at this stage it is not possible to embark upon any enquiry about the age of the accused but that point can be raised before the learned Lower Court, in the circumstances of the order that is going to be passed. 5. However, so far as this aspect is concerned, at this stage it is not possible to embark upon any enquiry about the age of the accused but that point can be raised before the learned Lower Court, in the circumstances of the order that is going to be passed. 5. Learned Additional Public Prosecutor submitted that the delay in lodging of the FIR was monumental which should be taken into consideration while deciding as to whether this prosecution is abuse of the process of the Court. 6. Learned counsel for Opposite Party No. 2, the complainant, submitted that explanation of delay has been provided in the complaint petition itself. Whether or not that explanation could be accepted is a matter to be decided at the trial stage. It is submitted that in so far as the complaint petition is concerned, it clearly spells out the offence committed by the petitioners in support of which the complainant had examined as many as five witnesses including her two sons who all had supported the allegations and apart from the evidence of the sons of the complainant, even independent witnesses supported the specific allegations also naming the accused. 7. In so far as Annexure-3 is concerned, it cannot be considered while deciding this application as this document obviously was not available to the learned Magistrate while deciding about the issuance of summonses to the accused persons. It is well settled that if the complaint petition and the evidence brought on the record make out an offence allegedly committed by the accused persons, prima facie, then the truth or otherwise of the allegation should better be decided by the trial Court where evidence of both the sides could be adduced as the trial Court would be in better position to decide about and evaluate the evidence on record. 8. In the instant case I find that the facts alleged in the complaint petition make out an offence against the accused persons which allegations are supported by witnesses. In view of this only on the ground that the complaint petition was filed after inordinate delay, this Court should not invoke its jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the criminal proceeding, or the impugned order summoning the accused persons. 9. In the result this application fails and is dismissed. In view of this only on the ground that the complaint petition was filed after inordinate delay, this Court should not invoke its jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the criminal proceeding, or the impugned order summoning the accused persons. 9. In the result this application fails and is dismissed. However, this Court makes it clear that observations made in this order are strictly with regard to consideration of the matter in hand which would not be considered by the learned lower Court while holding trial or while considering framing of the charges.