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2003 DIGILAW 974 (JHR)

Sibu Sao v. State of Jharkhand

2003-08-11

AMARESHWAR SAHAY

body2003
JUDGMENT Amareshwar Sahay, J.-All the three applications, are taken up together as the petitioners in all the applications have been arrayed as accused in Complaint case no. 865 of 2001 instituted by Kaushalya Devi, opposite party no. 2. The petitioners, in all the three applications, have challenged the order taking cognizance, dated 2.2.2002, passed by the Chief Judicial Magistrate, Giridih by which the learned Magistrate has taken cognizance for the offence Under Sections 376/511 of the Indian Penal Code and 3(i)(x)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, (Herein after referred to as the "Act") after finding a prima facie case against the petitioners. 2. The complaint case as would appear from the complaint petition, which is made Annexure 1 to this application is that the Complainant why is the member of Scheduled Tribes and is a poor married lady. It is said that one of the accused persons Bishwanath Sao (Cr. M.P. no. 731/ 2003) has implicated the husband of the complainant in a false case of dacoity for which he is in jail. It is said that when complainant had gone to attend the call of nature, the petitioner Bajo Sao (Cr. M.P. no. 730/2003) suddenly appeared and thereafter he tried to commit rape on her. When the complainant started raising hulla, Bajo Sao started fleeing away from there and thereafter the complaint started chasing him. It is said that Bishwanath Sao, Bajo Sao, Sibu Sao, Kailu Sao and Sudhir Sao started abusing the complainant in filthy language and assaulted her and Bajo Sao was telling the complainant by using the words Shali Dusadhin Ko Jaan Se Mar Do. Subsequently on 21.7.2001 the aforesaid complaint case was registered in the court of the Chief Judicial Magistrate, Giridih. 3. The learned Chief Judicial Magistrate after considering the averments made in the complaint petition, statements of the complainant on Solemn affirmation, and also considering the statement of the witnesses examined during the enquiry under Section 202 Cr.P.C., took cognizance of the offence against the petitioners as aforesaid. 4. Mr. A.K. Kashyap learned counsel for the petitioners, in all the applications, firstly raised a point that the order taking cognizance under Section 3 of the said Act is illegal because under the said Act only Special Judge is empowered to take cognizance and try the offence. 5. 4. Mr. A.K. Kashyap learned counsel for the petitioners, in all the applications, firstly raised a point that the order taking cognizance under Section 3 of the said Act is illegal because under the said Act only Special Judge is empowered to take cognizance and try the offence. 5. The second submission of the learned counsel for the petitioner is that the complaint case was filed by the complainant with malafide intention in order to coerce and black mail the' petitioner, Bishwanath Sao, who had lodged F.I.R. against the husband of the complainant under section 395 of the I.P.C. in connection of which, her husband is in jail and therefore only to put pressure on petitioner, Bishwanath Sao, the present complaint case was filed. He further submits that so far as the Bajo Sao is concerned there is no allegation at all against him in the complaint petition. So far as the petitioners Sibu Sao, Kailu Sao and Sudhir Sao are concerned, it is alleged that against them there is allegation in the complaint petition only to the extent that they used to abuse in filthy language against the complainant and assaulted her. So far as the allegation of attempt to rape is concerned, it is only against the Bajo Sao and not against others. 6. These applications were admitted for final hearing to consider the point of law raised on behalf of the petitioner regarding power/Jurisdiction of the C.J.M. to take cognizance for the offence against the petitioners under the said Act. 7. Cr. M.P. no. 289 of 2001 was admitted on 24.3.2003 for final hearing. After the said Cr. M.P. no. 289 was admitted, the point of law raised by the learned counsel for the petitioners in this petition was already decided by this Court in case of Osman Miyan vs. The State of Jharkhand and Am. reported in (2003) 2 J.L.J.R. 609 . 8. The learned counsel for the petitioners has vey fairly submitted that in view of the decision of this court in Osman Miyan (supra) and also in view of decision of the Supreme Court in the case of Gangula Ashok and Am. vs. State of A.P. reported in (2000) 1 Crimes 196 S.C. Now the point of law for which this case was admitted is no longer available to the petitioners and same has been set at rest by the Supreme Court. 9. Mr. vs. State of A.P. reported in (2000) 1 Crimes 196 S.C. Now the point of law for which this case was admitted is no longer available to the petitioners and same has been set at rest by the Supreme Court. 9. Mr. A.K. Kashyap learned counsel for the petitioners placed the complaint petition before me and submitted that the cognizance taken against the petitioners, Bishwanath Sao, Sibu Sao, Kailu Sao and Sudhir Sao is bad and same is liable to be quashed, because the fact mentioned in the complaint petition has been contradicted by complainant herself in her statements on solemn affirmation and also by the statement of the witnesses recorded during the enquiry under Section 202 Cr. P.C. He gave much stress on the point that the complaint was lodged with malafide intention only to harass the petitioners. 10. In my view, this question of fact cannot be decided at this stage when the evidence is yet to be adduced. The Magistrate has to decide as to whether there is a prima facie case against the accused persons for issuance of process on the basis of the averments made in the complaint petition, statements of the complainant on solemn affirmation and statements of the witnesses examined, if any, during the enquiry under section 202 Cr.P.C. and nothing else. The point raised by the petitioners at best can be said to be a defence which can not be looked into at this stage. 11. In that view of the matter I do not find any merit in these applications. Accordingly, all the applications are dismissed. 12. However, the petitioners are given liberty to raise all the points, which have been raised before this Court, before the trial court at the time of framing of the charge. The trial court while considering the point raised by the petitioners at the stage of framing of the charge will not be prejudiced in any way by the order of dismissal of these applications.