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2001 DIGILAW 959 (PAT)

Manoj Kumar v. State Of Bihar

2001-10-11

S.K.CHATTOPADHYAYA

body2001
Judgment 1. Heard learned counsel for the petitioner, opposite parties 2 and 3 and the State both on the limitation matter as well as the merit of the case. 2. It appears that though this revision application was time barred but this fact was not brought to the notice of the Court on 8.8.2001 when notice was issued to the opposite parties. Learned counsel for the opposite parties has raised an objection that without passing any order on the limitation matter notice could not have been issued. In my view, this objection is not sustainable. 3. Having heard the learned counsel for the parties on the limitation matter, I am satisfied that sufficient ground has been made out to condone the delay in filling the revision application. Accordingly, delay is condoned. 4. Now coming to the merit of the case, it appears that this revision application is directed against the order dated 2.3.2001 by reason of which the Judicial Magistrate, 1st Class, Hajipur. Vaishali has dismissed the protest-complaint petition filed by the petitioner. 5. It is stated that the complainant while going home from his brick kiln on his Rajdoot motorcycle at about 8.30 p.m. on 10.9.1998 the opposite parties 2 and 3 riding on a motorcycle surrounded him. They were accompanied by another person. The complainant had to stop his motorcycle. The opposite parties demanded Rangadari-tax and on denial by the petitioner-complainant they assaulted him and took a bag from the dickey of the motorcycle containing Rs. 12,600/-. They also snatched a Titan wrist watch of the petitioner and thereafter they fled away with the motorcycle of the petitioner also. The complainant could not note the number of the motorcycle of the opposite parties due to darkness. Two witnesses, namely, Nagendra Singh and Baleshwar Singh came at the place of occurrence and took the petitioner to Hazipur Sadar Hospital for medical treatment. On being reported.Police registered a case bearing Sadar Hazipur P.S. Case No. 908 of 1998 under Section 341. 323, 384 and 34 of the IPC but after investigation, it is stated, with connivance of the contesting opposite parties, Police filed final form finding the allegation false. The Police also recommended for prosecution against the petitioner under Section 182 and 211 of the IPC. 6. 323, 384 and 34 of the IPC but after investigation, it is stated, with connivance of the contesting opposite parties, Police filed final form finding the allegation false. The Police also recommended for prosecution against the petitioner under Section 182 and 211 of the IPC. 6. The petitioner filed a protest-cum complaint petition before the Chief Judicial Magistrate which was transferred to the Judicial Magistrate for enquiry under Section 192 of the Cr. P.C. 7. The learned Magistrate by impugned order has dismissed the complaint petition on the ground that no prima facie case is made out in the complaint petition inasmuch as there is discrepancy in the allegation made in the complaint petition and the statements of the witnesses recorded by him during the enquiry. The Magistrate has also looked to the case-dairy for deciding the case against the complainant. He has particularly referred to para-graph-50 of the case-diary. 8. Learned counsel for the petitioner has contended that from a bare perusal of the allegation made, it will be seen that the opposite parties committed the offence but due to some influence, the Police submitted final form finding the allegation false. According to him, during enquiry before the. Magistrate, three witnesses supported the case of the complainant-petitioner and as such the learned Magistrate ought not to have dismissed the complaint petition on perusal of the case-diary. 9. Learned counsel for the contesting opposite parties asserted that the impugned order cannot be said to be illegal inasmuch as the learned Magistrate did not find any prima facie case against the opposite parties. Referring to the allegation made in the complaint petition he submits that when according to the complainant, there was no eyewitness to the occurrence, the very presence of the witnesses Nagandira Singh and Baleshwar Singh are not probable. However, learned counsel does not dispute the position in law that in an enquiry under Section 192 of the Cr. P.C. the Magistrate is not entitled to see the case diary or any Police paper for coming to the conclusion as to whether a prima facie case is made out or not. 10. I have gone through the allegation made in the complaint petition as well as the statements recorded in the enquiry by the learned Magistrate. P.C. the Magistrate is not entitled to see the case diary or any Police paper for coming to the conclusion as to whether a prima facie case is made out or not. 10. I have gone through the allegation made in the complaint petition as well as the statements recorded in the enquiry by the learned Magistrate. It is well settled that at this stage the Magistrate is not required to see as to whether there is a chance of conviction of the accused but only to see as to whether a primafacie case is made out against the petitioner. Even assuming that there are some discrepancy in the allegation made in the complaint petition and those of the statements made by the witnesses but the same can be scrutinised at the time of trial. At this stage, the Magistrate, in my view could not have looked to the case-diary alongwith the complaint petition and the statements of the witnesses for coming to the conclusion that there is no primafacie case. 11. In the result, this application is allowed and the impugned order dated 2.3.2001, passed by the Judicial Magistrate, Ist Class, Hajipur, Vaishali and the matter is remitted back to the Judicial Magistrate for appreciating the case in accordance with law, without being influenced by the fact that the Police has submitted a final form in this case. The Magistrate will confine himself to the allegations made in the complaint-protest petition as well as the statements of the complainant on oath and his witnesses before him. 12. This application is thus allowed with the aforesaid observations and directions.