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2004 DIGILAW 1142 (JHR)

URMILA SARKAR v. STATE OF BIHAR

2004-12-23

SUDHANSU JYOTI MUKHOPADHAYA

body2004
Judgment : ( 1 ) THIS application under Section 482 of the Code of Criminal Procedure has been preferred by the petitioner Smt. Urmila Sarkar for quashing the order dated 7th February, 2004, passed by the learned sessions Judge. Jamtara, in Cr. Revision No. 5 of 2004. whereby and where under. the learned Court below has dismissed the revision application, preferred by the petitioner against the order dated 5th January, 2004, passed by the learned Judicial Magistrate. 1st Class, Jamtara, in Tr. No. 152 of 2004. arising out of P. C. R. Case No. 298 of 1995. By the aforesaid order dated 5th January, 2004 the learned Judicial Magistrate, 1 st Class, Jamtara, has rejected the application, preferred by the petitioner under section 323 of the Code of Criminal Procedure to commit the case to the Court of Sessions. ( 2 ) ACCORDING to the petitioner, she is complainant in P. C. R. Case No. 298 of 1995, which was filed against opposite party Nos. 2 to 6. Her case is that on 13th September, 1995 at about 4. 00 p. m. she was initially discharged from Dr. Sahus Nursing Home. During the said period she was not working and one Dr. Saltilal Das used to work in the said Nursing Home. She (complainant) was subsequently re-employed and on such re-employment, the accused persons, stated to be closely related to Dr. Saltilal Das, became very much annoyed and angry and due to such annoyance, they assaulted and abused her and also gave threats, asking her to leave the services. But in spite of the aforesaid threat and torture, she (complainant) continued to cany on her services. It was further alleged that on the date of the occurrence i. e. 13th September, 1995 while the complainant was performing her duties, at about 4. 00 p. m. the accused persons trespassed into the area of the Nursing Home, assaulted her and molested her, due to which the complainant had to lodge the complaint petition on 21st September, 1995, wherein, the learned Court below has taken cognizance against the accused persons for the offences under Sections 147/323/354/ 452 of the Indian Penal Code. Further, according to the complainant (petitioner herein) on the same date i. e. 13th september, 1995 one of the accused, namely, Gabriel Das, had lodged one First information Report, alleging therein, that on 13th September, 1995 at about 4. Further, according to the complainant (petitioner herein) on the same date i. e. 13th september, 1995 one of the accused, namely, Gabriel Das, had lodged one First information Report, alleging therein, that on 13th September, 1995 at about 4. 00 p. m. at Sub Divisional Hospital, Jamtara, while an altercation was going on in between some female members, in the meantime, Prabir mousi, Ashim Sarkar alias Dablu, Peter murmu, Samir Murmu, Asit Murmu, Malay murmu with other accused persons, forming an unlawful assembly, came there and prabir Mousi inflicted axe blow on the head of Sushanta Das, as a result of which sushanta Das became unconscious, sustaining injuries, and later on died. In the said F. I. R. it was also alleged that other witnesses were also assaulted with sticks and rods and when Belu Das went to rescue her husband, she was assaulted by Sabir murmu alias Khokan with rod on her head and she also sustained bleeding injuries. On hearing Hulla, the villagers and Riksha poolers came there and saved them. On such fard-beyan, an F. I. R. was drawn up and the case was registered as Jamtara P. S. Case no. 166 of 1995, corresponding to G. R. No. 478 of 1995, against the aforesaid accused persons for the offences under Sections 147/ 148/307/302 of the Indian Penal Code. ( 3 ) ACCORDING to the petitioner, if the complaint petition, filed by her, and the F. I. R. , lodged by accused/opposite party No. 2 are read together, it will be evident that the date and time of occurrence in both the cases, including the place of occurrence, are same. Both the cases having arisen out of the same occurrence, the complaint case should also have been committed to the Court of Sessions for being tried together. ( 4 ) FOR the said reason, the complainant (petitioner herein) filed an application under Section 323 of the Code of Criminal Procedure on 18th December, 2003 but it was not entertained by the learned Judicial Magistrate, 1st Class, Jamtara, who rejected the same vide order dated 5th January, 2004. Cr. Revision No. 5 of 2004, thereafter, preferred by the petitioner/complainant, was also rejected on 7th February, 2004 by the learned Sessions Judge, Jamtara. ( 5 ) FROM the revisional order dated 7th february, 2004, passed in Cr. Cr. Revision No. 5 of 2004, thereafter, preferred by the petitioner/complainant, was also rejected on 7th February, 2004 by the learned Sessions Judge, Jamtara. ( 5 ) FROM the revisional order dated 7th february, 2004, passed in Cr. Revision No. 5 of 2004, it will be evident that the learned sessions Judge, Jamtara, having noticed the stand taken by opposite party No. 2, was of the view that there was no link or connection in between both the cases i. e. Jamtara p. S. Case No. 166 of 1995 and P. C. R. Case no. 298 of 1995. The place of occurrence as was described in paragraph Nos. 1, 2, 3 and 4 of the complaint case and the place of occurrence, giving rise to Sessions Case No. 186 of 2001, arising out of Jamtara P. S. Case no. 166 of 1995, were not common. In fact, there was no specific description of the place of occurrence, alleged to have been given therein. Learned Sessions Judge further noticed that the witnesses, produced and examined on behalf of the complainant (petitioner herein), in their deposition in P. C. R. Case No. 298 of 1995, have not stated that the case was filed either by way of counter blast or counter case of Jamtara P. S. Case no. 166 of 1995, which was filed much earlier than the complaint case. The trial of p. C. R. Case No. 298 of 1995, corresponding to Tr. No. 152 of 2004, had long been concluded and even the accused persons have been examined under Section 313 of the code of Criminal Procedure. It was also noticed that the revision application was preferred only to obstruct the disposal of the case, which was more than nine years old, in which material witnesses have already been examined. It was further noticed that the parties have earlier moved before the sessions Judge in Cr. Revision No. 97 of 2001, wherein, vide order dated 2nd May, 2003 the Sessions Judge directed to conclude the trial within few months, which was later on extended on the request of the trial court. But even then at the behest of the complainant, the case was dragged and the judgment could not be delivered. Revision No. 97 of 2001, wherein, vide order dated 2nd May, 2003 the Sessions Judge directed to conclude the trial within few months, which was later on extended on the request of the trial court. But even then at the behest of the complainant, the case was dragged and the judgment could not be delivered. The learned Sessions Judge found that prima facie there appears to be two different occurrences, having taken place at two different places, which may not be connected to each other and there was no specific material or evidence on record to suggest the same, except the averments, made in the bail petition, filed by one of the opposite parties in the Court below. ( 6 ) IN the circumstances, as it was found that there is doubt as to whether there is a case and counter case out of the same incident between the same parties, which was being dealt with in detail by the learned court below, this Court is not inclined to interfere with the impugned order dated 7th february, 2004, passed by the learned Sessions Judge, Jamtara, passed in Cr. Revision no. 5 of 2004. Accordingly, there being no merit, this Criminal Misc. Petition is hereby dismissed. Petition dismissed. --- *** --- .