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2001 DIGILAW 804 (PAT)

Manjhi Rai @ Majhi Rai v. State Of Bihar

2001-08-30

P.K.SINHA

body2001
Judgment P.K.Sinha, J. 1. This is an application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") preferred by Manjhi Rai and 25 others for quashing order dated 1.2.1997 recorded by the learned Judicial Magistrate Ist Class, Sheohar (Sitamarhi) under which in Complaint Case No. C/123 of 1996 the learned Magistrate having found prima facie case made out under Sections 379 and 323 of the Indian Penal Code against the petitioners had summoned them to face the trial. 2. Before proceeding further it may be mentioned that notice upon opposite party No. 2 Bishwa Rai, was issued under order of this Court which was treated to have been served upon him by order dated 29.9.1999 but in course of arguments neither opposite party No. 2 nor any counsel on his behalf appeared, hence this order is being passed after hearing learned counsel for the petitioners and learned Additional Public Prosecutor. 3. The brief facts of this case are that opposite party No. 2 had earlier filed a complaint before Subdivisional Judicial magistrate, Sheohar against the petitioners with allegation that on 22.5.1995 all the petitioners (accused in complaint case) had come variously armed at the pond of the complainant and they took away with them fishes worth Rs. 2000/- and when the son of the complainant Ramu Rai, wanted to stop them, two of the accused had forcibly taken him with them which son was missing since then. 4. Under provisions of Section 156(3) of the Code the learned Sub-divisional Judicial Magistrate forwarded the complaint petition to the concerned police Station for registering a case and making investigation and, accordingly, a police case was registered and investigation ensued. 5. The police after investigation submitted final report on 25.6.1996 dubbing the allegations to the false and recommending prosecution against the complainant under Sections 182 and 211 of the Indian Penal Code which report (Annexure-2) was accepted by the learned lower Court on 19.8.1996. However, in the meantime, a protest petition was filed by the complainant which then was treated as a complaint petition and proceeding in that regard commenced. It is submitted that when after several adjournments the complainant did not appear, the complaint was dismissed by the Court on 21.9.1997. However, in the meantime, a protest petition was filed by the complainant which then was treated as a complaint petition and proceeding in that regard commenced. It is submitted that when after several adjournments the complainant did not appear, the complaint was dismissed by the Court on 21.9.1997. Thereafter, the complainant through registered post sent an application (Annexure 3) to the Court of Subdivisional Judicial Magistrate, Sheohar again naming all the accused persons and making similar allegations, requesting the Court to take action for recovery of his son and to take action also against the accused persons of the offences committed by them. 6. The certified copies of different orders passed by the Court after receipt of that application have been annexed from which it appears that on 13.8.1996 the learned Subdivisional Judicial Magistrate had perused that application and treated the same as complaint petition ordering issuance of notice to the complainant for his examination on solemn affirmation and by order dated 3.9.1996 the learned Subdivisional Judicial Magistrate transferred the case to the Court of a Judicial Magistrate of first Class where the statement on solemn affirmation of the complainant was recorded and learned Magistrate directed for enquiry under Section 202 of the Code in course of which three witnesses were produced by the complainant and, on consideration of the materials on record, by the impugned order dated 1.2.1997 the accused were summoned to face trial. 7. Learned counsel for the petitioners has assailed the impugned order on the following grounds: (i) Annexure 3 could not be treated as a complaint under Section 190(1)(i) of the Code but in that regard the learned Magistrate could have proceeded under Section 190(1)(c) of the Code which the learned Magistrate had not done. (ii) The protest petition which was treated to be complaint was ultimately dismissed on 2.8.1996, hence the subsequent application filed by the complainant could not have been entertained. (ill) In this case the police had made investigation and found the allegations to be false and recommended for proceeding against the informant/complainant for filing the case with false allegation. This coupled with the fact that the complaint petition was dismissed on 1.2.1997, it was not proper to proceed with Annexure 3 treating that as complaint filed by the complainant. 8. This coupled with the fact that the complaint petition was dismissed on 1.2.1997, it was not proper to proceed with Annexure 3 treating that as complaint filed by the complainant. 8. Learned Additional Public Prosecutor, in reply, submitted that the learned lower Court had rightly treated Annexure-3 as complaint within meaning of Section 190(1)(i) of the Code and in any case the law did not prohibit one from filing a complaint petition under the circumstances. 9. Section 2(d) of the Code defines complaint as reproduced below: "complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some persons, whether known or unknown has committed an offence, but does not include a police report........". 10. Coming to Annexure-3 it will appear that the complainant in that petition to the Court sent through post had named the accused persons, who are petitioners, and had alleged that they had come with arms and had looted away fishes worth Rs. 2,000/-also claiming that when his son Ramu Rai went there, two of the accused forcibly caught him and took him away which son had not returned. He also narrated as to how he himself was sent to the jail in connection with a case and was in jail on the date of occurrence but when he was released, a witness informed him about the occurrence and how thereafter he had gone to the police for justice which he did not get. In the last he not only prayed for taking action for release of his son but also for taking action against the accused persons named by him. 11. Averments of this application do satisfy the ingredients of a complaint as defined under Section 2 (d) of the Code. Therefore, in the opinion of this Court, even if that application was sent through post and the learned Subdivisional Judicial Magistrate after having gone through that, and having taken cognizance of offence, transferred that case under Section 192 of the Code to a Magistrate subordinate to him, he did not commit any illegality. 12. In so far as the second ground taken by the learned counsel is concerned, in a case in which earlier complaint has been dismissed for non appearance of the complainant to give his statement on solemn affirmation, he is not barred under law to file a fresh complaint. 12. In so far as the second ground taken by the learned counsel is concerned, in a case in which earlier complaint has been dismissed for non appearance of the complainant to give his statement on solemn affirmation, he is not barred under law to file a fresh complaint. In such a case subsequent complaint filed by him can be entertained. 13. In so far as third point is concerned, when a complaint has been entertained and cognizance of offence has been taken, further proceeding under Section 202 of the Code for an enquiry, the point to be considered before ordering issuance of process against the accused is whether or not the complaint and the materials brought in course of enquiry disclose commission of an offence by a person known or unknown. If those materials prima facie make out a case relating to commission of an offence, the Magistrate is entitled to issue process. 14. From the record it will appear that the complainant in his statement on solemn affirmation recorded by the Magistrate, and his three witnesses, by and large had supported the allegations made in the complaint. In view of such support it is not for this Court at this stage while considering an application under Section 482 of the Code to shift the evidence with a view to arrive at a conclusion as to whether the case could end in conviction of accused. If the materials on record prima facie make out an offence, then it is for the trial Court to invite evidence in course of trial and on basis of that to arrive at a decision about the guilt or otherwise of the accused so proceeded against. 15. In view of the aforesaid circumstances, I find no merit in this petition with stands dismissed. 16. However, it is made clear that the observations made in this order will not be taken into consideration by the learned lower Court in course of trial or even when considering framing of the charges against the accused at appropriate stage.