Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 936 (PAT)

Abdul Aziz v. State Of Bihar

2004-09-10

RADHA MOHAN PRASAD

body2004
Judgment 1. This criminal miscellaneous application is directed against the order dated 7.12.2000 passed in Tr. No. 1355 of 2000 arising out of Bagaha RS. Case No. 226 of 1999 by the Judicial Magistrate, Bagaha whereby and whereunder the learned court below has dismissed the petition for discharge filed by the petitioner of the offences under sections 147, 420, 466 and 120B of the Indian Penal Code besides for quashing the entire criminal proceeding. 2. The facts of the case are that in Ram Nagar P.S. Case No. 112/96 registered under sections 323, 341, 324, 337, 307 and 302 of the Indian Penal Code three accused persons, namely, Gul Bahar Mian, Sanaullah Ansari and Sabir Khan, were enlarged on bail by this Court. On 7.9.1998 the case was fixed for commitment and on the said date a petition under section 317 Cr. P.C. was filed on behalf of the accused persons which was rejected by the court and warrant of arrest were issued. On 28.7.1999 the said accused persons appeared in the court and applied for bail, the accused persons remanded to jail custody. However, on 29.7.1999 the informant of this case came to know from his brother Ramashish Yadav that the real accused Sabir Khan was in service at Panipat and in his place someone has impersonated himself as Sabir Khan and remanded to jail custody. It is stated that a petition to this effect was filed by the informants brother Ramashish Yadav and the informant also lodged the First Information Report. It is alleged that the accused persons in connivance with each other duped the court in order to secure bail. The accused Jabbar Sah has impersonated himself as Sabir Khan. 3. According to the petitioner till conclusion of the investigation nothing transpired against him and the charge sheet was submitted against the above three accused persons named in the F.I.R. However, after submission of the charge sheet there was political pairvi in the matter and almost about nine months after submission of the charge sheet Dy. S.R directed the Investigating Officer to find out whether there was complicity of this petitioner with the alleged offence. It is alleged that on the pretext of further investigation the I.O. obtained the photo copy of the surrender petition of the accused persons which bears the signature of the petitioner as a counsel for the accused. S.R directed the Investigating Officer to find out whether there was complicity of this petitioner with the alleged offence. It is alleged that on the pretext of further investigation the I.O. obtained the photo copy of the surrender petition of the accused persons which bears the signature of the petitioner as a counsel for the accused. According to the petitioner, there is nothing on the petition to indicate that the petitioner had signed it in token of identification of the accused. It is stated that in fact the petition was drafted and signed on the instruction of the accused Gul Bahar Mian and the petitioner had absolutely no personal knowledge about the accused persons. The order dated 28.7.1999 passed by the learned court concerned also does not disclose that the accused persons were identified by the petitioner. However, the I.O. submitted the supplementary charge sheet against this petitioner alleging that the petitioner had identified a wrong person with a view to obtain his bail and thereby he attempted to play fraud upon the court. The petitioner filed a petition for discharge on the ground, inter alia, that there is absolutely no material against him to make out a prima facie case under sections 419, 420, 466, 467 of the Indian Penal Code and so far the offences under sections 197, 199, 200 and 205 I.P.C. are concerned, the cognizance of these offences is barred under section 195 Cr. PC. since no complaint was filed by the court concerned and further that the cognizance itself is bad in law, vitiating the entire criminal proceeding. The court below rejected the petition for discharge by the impugned order dated 7.12.2000. 4. Learned counsel for the petitioner has contended that the supplementary charge sheet has been submitted against the petitioner without any evidence against him. He submitted that neither during the first investigation nor during so called further investigation any material came before the Investigating Officer to suggest any complicity of the petitioner for the alleged offences. According to him, the accused persons, who were examined by the police, did not make any statement implicating the petitioner. He further contended that the cognizance of the offences is barred under section 195 Cr.P.C. since no complaint was filed by the court concerned. According to him, the accused persons, who were examined by the police, did not make any statement implicating the petitioner. He further contended that the cognizance of the offences is barred under section 195 Cr.P.C. since no complaint was filed by the court concerned. As such, according to him, the continuation of the present criminal proceeding is an abuse of the process of the Court and thus, fit to be quashed. In support of this, he has placed reliance in the case of Gopalkrishna Menon and anor. V/s. D. Raja Reddy and anor., reported in AIR 1983 S.C. 1053 . 5. Learned counsel for the State, on the other hand, submitted that Section 195 Cr. PC. is not at all relevant in the present case as the court below finding sufficient material against the accused petitioner has framed charge under sections 197, 420, 466 and 120B I.P.C. He further contended that the learned Magistrate on perusal of the case record and paragraphs 17 and 32 of the case diary has found that there is allegation of criminal conspiracy against the petitioner and thus finding sufficient material has rightly framed charge under sections 197, 420, 466 and 120B I.P.C. Thus, according to him, there is no infirmity in the impugned order or proceeding with the criminal prosecution against the petitioner. 6. I find substance in the submission of the learned counsel for the State. In the present case on perusal of paragraphs 17 and 32 of the case diary the learned Magistrate has found sufficient material against the accused for framing charge under sections 197, 420, 466 and 120B I.P.C. in which I do not find any infirmity. It is true that in view of the law settled in the case of Gopai Krishna Merton & anor. V/s. D.Raja Reddy & anor. (supra) by the Apex Court the offence punishable under section 466 is in respect of an offence described in section 463 which defines forgery and 466 punishes forgery of a particular category and thus the provision in section 195 (1)(b)(ii) Cr. V/s. D.Raja Reddy & anor. (supra) by the Apex Court the offence punishable under section 466 is in respect of an offence described in section 463 which defines forgery and 466 punishes forgery of a particular category and thus the provision in section 195 (1)(b)(ii) Cr. P.C. is immediately attracted and in the absence of a complaint by the court the prosecution under section 466 would not be maintainable but in the present case the learned Magistrate has framed charges under sections 197 and 420 I.P.C. also against the accused petitioner on the basis of the materials on record and as such, in my opinion, the entire proceeding cannot be quashed. However, as it is not clear from the record as to whether there was any complaint by the court in relation to forgery but I find from the submission of the learned A.P.P. mentioned in the impugned order that the police has lodged this case on the instance of the court as the informant had filed a petition in the court at first and on direction of the court he had given the written report before the police, this Court directs the learned Magistrate to re-examine the above aspect and if he finds that the charge under section 466 I.P.C. against the accused petitioner is not based on the complaint by the court, the prosecution would not be maintainable and pass appropriate order in this regard. 7. The miscellaneous application is thus disposed of. 8. However, it is made clear that any observation made in this order shall not in any manner prejudice the court below in proceeding with the matter further.