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2004 DIGILAW 961 (PAT)

Chandra Bhushan Roy v. State Of Bihar

2004-09-14

M.L.VISA

body2004
Judgment 1. This application by petitioners has been filed for quashing order dated 17.4.2003 passed by learned Chief Judicial Magistrate, Begusarai taking cognizance against the petitioners under Sections 193, 194 and 195 of Indian Penal Code (In short "IPC") in Barauni Police Station Non-first information report Case No. 1 of 2003 and order dated 1.12.2003 passed by learned llnd Additional Sessions Judge, Begusarai in criminal revision No. 396 of 2003 by which he, relying upon a decision of this Court in Cr. Misc. No. 2821 of 1995 reported in the case of Smt. Bacha Devi @ Bacha Oai Devi V/s. State of Bihar & Others [ 2000(1) PLJR 930 ] in which it has been held that "...Sessions Judge has no jurisdiction to entertain the revision petition against the order of cognizance. Such entertaining of revision petition is without jurisdiction and hence the order of the Sessions Judge cannot be maintained", has dismissed the criminal revision petition filed by the petitioners against the order dated 17.4.2003 of learned Chief Judicial Magistrate, Begusarai taking cognizance against them. 2. Brief facts of the matter are that on the basis of Fard-e-bayan of petitioner No.3 Avinash Kumar, police registered Barauni (Gahara) Police Station Case No.264 of 2002 dated 20.6.2002 under Section 302 of IPC and Section 27 of Arms Act against unknown. During the course of investigation, statements of petitioners were recorded under Section 164 of Code of Criminal Procedure (In short Cr.P.C"). The police, after comparing the statements of petitioners recorded under Section 164 of Cr.P.C. with the post mortem examination report, came to the conclusion that petitioners had given false evidence. The ground of coming to the conclusion was that the police found that the petitioners, in their statements recorded under Section 164 of Cr.P.C, stated that deceased was " shot at-on the night between 19.6.2002 and 20.6.2002 at about 1.30 Oclock whereas according to post mortem examination report, death of deceased had occurred prior to 11 PM on 19.6.2002. The Sub-Inspector of Police, under the written direction of Superintendent of Police, Begusarai accepting the recommendation of Subdivi-sional Police Officer, Sadar, submitted a prosecution report under Sections 193,194 and 195 of IPC against the petitioners. The Sub-Inspector of Police, under the written direction of Superintendent of Police, Begusarai accepting the recommendation of Subdivi-sional Police Officer, Sadar, submitted a prosecution report under Sections 193,194 and 195 of IPC against the petitioners. On the basis of this prosecution report, learned Chief Judicial Magistrate, by his order dated 17.4.2003, took cognizance against the petitioners under Sections 193, 194 and 195 of IPC and transferred the case to the Court of Shri A. K. Shrivastava, Judicial Magistrate, lst class, Begusarai for trial who, by his order dated 15.5.2003 issued summons for appearance of petitioners before his Court. 3. Mr. Jagannath Singh, the learned counsel of petitioners submits that on the basis of mere prosecution report submitted by a Police Officer alleging therein that the petitioners gave false and fabricated evidence in a judicial proceeding before a Court when their statements were recorded under Section 164 of Cr.P.C, the learned Chief Judicial Magistrate has taken cognizance which is against the provisions of Section 195 of Cr.P.C. which debar the Court from taking cognizance of any offence punishable under Sections 193 to 196 of IPC when such offence is alleged to have been committed in or in relation to any proceeding in any Court except on the complaint in writing of that Court or some other Court to which that Court is subordinate. I find great force in this argument advanced by the learned counsel of petitioners. Relevant portion of Section 195 of Cr.P.C. reads as follows: 195. Prosecution for contempt ot lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance (b) (i) of any offence punishable under any of the following sections of Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. 4. In the present case, admittedly, allegation against the petitioners in the prosecution report is that they gave false evidence in their statements recorded under Section 164 of Cr.P.C. Admittedly, statements of petitioners under Section 164 of Cr.P.C. were recorded by a Court. 4. In the present case, admittedly, allegation against the petitioners in the prosecution report is that they gave false evidence in their statements recorded under Section 164 of Cr.P.C. Admittedly, statements of petitioners under Section 164 of Cr.P.C. were recorded by a Court. No Court has made any complaint against the petitioners that they gave any false evidence before it. The police itself assumed the role of a judge and by taking into consideration the post morten examination report came to a conclusion that the petitioners gave false evidence before the Court while getting their statements recorded under Section 164 of Cr.P.C. As stated above, the ground for coming to this conclusion is that according to police, in their statements, petitioners stated that deceased was shot at on the night between 19.6.2002 and 20.6.2002 at about 1.30 Oclock whereas in the post mortem examination report of deceased, the doctor opined that death had occurred between the period from 12 hours to 24 hours from the time of examination which, according to report, was 11 AM on 20.6.2002. 5. I fail to understand how the police, merely on the basis of post mortem examination report, came to a conclusion about the exact time of death of deceased and further came to the conclusion that petitioners deliberately gave false statements about the time of death of deceased. Neither there was any finding of a Court accepting the opinion of the doctor who held autopsy on the point of exact time of death of deceased nor there was any finding that petitioners deliberately gave false statements about the time of death of deceased. Generally, in post mortem examination report, the doctor gives an approximate time of death of deceased and it is only after his evidence in Court, it can be said that the time mentioned by him in post mortem examination report about the death of deceased is subject to any margin or not. Be what it may, in the present case, I find that if at all the police thought that the petitioners had given false statements before the Court, it should have brought this fact to the knowledge of the concerned Court which, after a preliminary enquiry, as provided under Section 340 of Cr.P.C, would have taken further action which it would have thought proper. In the present case, the police, by judging the matter itself, straightway submitted a prosecution report and on the basis of that, learned Chief Judicial Magistrate took cognizance against the petitioners which is against the provisions of Section 195 of Cr.P.C. There is one more aspect of this matter. The prosecution report (Annexure-1) shows that in the case lodged by petitioner No.3, considering the discrepancy on the time of death of deceased as stated in the statements of petitioners recorded under Section 164 of Cr.P.C. and the post mortem examination report, not only the police submitted prosecution report under Sections 193, 194 and 195 of IPC against the petitioners but it submitted final form in the case lodged by petitioner No.3 declaring the case as true but without clue. Mr. Jagannath Singh, learned counsel of petitioners has produced the certified copy of order dated 17.12.2003 of the Court of Shri S.N.Srivastava, Judicial Magistrate, 1st Calss, Begusarai showing that against the final form submitted by police in the case lodged by petitioner No.3, a protest petition by petitioner No.3 was filed which was treated as complaint petition and in which apart from examination of petitioner No.3 on solemn affirmation and evidence of witnesses produced by him, the statements of petitioners recorded under Section 164 of Cr.P.C. were also considered and cognizance in that case under Sections 302/34 of IPC against the accused persons named in protest petition was taken. This has given rise to two different aspects quite contradictory to each other. On the one end, the petitioners have been summoned to face trial for giving false statements under Section 164 of Cr.P.C. and on the other end, the same statements were considered one of the factors taking cognizance against the accused persons named by petitioner No.3 in his complaint petition in respect of a matter in which statements of petitioners were recorded under Section 164 of Cr.P.C. and cognizance has already been taken on the complaint petition of petitioner No.3 against the final form submitted by police. It is only after the trial of the case that it can be said that whether statements given by petitioners under Section 164 of Cr.P.C about the time of death of deceased were true or post mortem examination report on this point was true and if after trial it is held that time of death of deceased as given in post mortem examination report was correct and true even then for prosecuting the petitioners for giving the false evidence in their statements under Section 164 of Cr.P.C, it is further required that petitioners deliberately gave false statements. In absence of all these facts, question of prosecuting the petitioners under Sections 193, 194, 195 of IPC at this stage, in my opinion, does not arise. Notwithstanding all these facts, as stated earlier, since the complaint has not been filed by any Court but merely on the basis of a police report that the petitioners gave false evidence before a particular Court taking cognizance is not according to provisions of Section 195 of Cr.P.C. The order dated 17.4.2003 passed by learned Chief Judicial Magistrate, Begusarai taking cognizance against petitioners under Sections 193, 194 and 195 of IPC, therefore, cannont be upheld. 6. Now coming to order dated 1.12.2003 passed by learned llnd Additional Sessions Judge, Begusarai in criminal revision No. 396 of 2003, I find that the petitioners challenged the order dated 17.4.2003 passed by learned Chief Judicial Magistrate, Begusarai but the learned llnd Additional Sessions Judge, relying upon a decision of this Court in Cr.Misc. No.2821 of 1995 reported in 2000(1) PLJR 930 (supra), has dismissed the criminal revision petition of petitioners. In the case, which has been relied upon by learned llnd Additional Sessions Judge, Begusarai, it has been held by a Single Judge of this Court that : "It is settled principle of law that cognizance is taken of the offence and not against the offenders and if summons have been issued on the basis of the cognizance the same cannot be challenged under the Revisional Jurisdiction under Sections 397/399 Cr.P.C. as it has already been established by the Apex Court in various judgments right from the case of Amarnath and on later decision that issuance of summon etc., are only interlocutory orders and there is no revision maintainable under Sections 397/399 Cr.P.C." 7. In the case of Amar Nath and others V/s. State of Haryana and Another, (1977) 4 Supreme Court Cases 137, it was held that: "Let us now proceed to interpret the provisions of Section 397 against the historical background of these facts. Sub-section (2) of Section 397 of the 1973 Code may be extracted thus: The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in subsection (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Websters New World Dictionary "interlocutory" has been defined as an order other that final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. 8. It is true that in the aforesaid case, facts were different than the facts of the present case because in that case, the police, after holding investigation, submitted chargesheet against co-accused persons except the appellants against whom the police opined that no case was made out against the appellants nor there was any clear evidence about the participation of appellants. This report was accepted and appellants were set at liberty. The complainant filed a revision against the order acquitting the appellants and this was dismissed. The complainant filed a regular complaint against all the accused persons including appellants and his complaint was dismissed and then the complainant took up the matter in revision before Sessions Judge, Karnal who accepted the revision petition and remanded the case to Judicial magistrate for further enquiry and, thereafter, the learned Judicial Magistrate, on receiving the order of Sessions Judge, issued summons to the appellants The appellants then moved the High Court under Sections 482 and 397 of Cr.P.C. against the order of Sessions Judge. High Court dismissed the petition in limine on the ground that order of Judicial Magistrate summoning the appellants was an interlocutory order and a revision in High Court was barred by virtue of Section 392(2) of Cr.P.C. Under these facts, the Supreme Court held that the order of Magistrate summoning the appellants cannot be held to be an interlocutory order and remanded the case to High Court for deciding the revision on merit. Although the facts of the present case are not as same as that referred in the aforesaid decision of Supreme Court but then I find that the Supreme Court in its above judgment has nowhere held that taking cognizance and issuing summons to accused persons is an interlocutory order. Although the facts of the present case are not as same as that referred in the aforesaid decision of Supreme Court but then I find that the Supreme Court in its above judgment has nowhere held that taking cognizance and issuing summons to accused persons is an interlocutory order. It is true that while giving examples of interlocutory orders, it has referred issuance of summons to witnesses and to me, it appears that the matter was not placed rightly before the learned Judge of this Court in Cr. Misc.No. 2821 of 1995 where it has been held that the Apex Court in its various judgments right from the case of Amarnath, has held that issuance of summons etc. are only interlocutory orders and there is no revision maintainable under Sections 397/399 Cr.P.C. 9. From the order of learned llnd Additional Sessions Judge, Begusarai, I find that from the side of petitioners, decision of Supreme Court in the case of Rajendra Kumar Sitaram Pande and Others V/s. Uttam and Another 1999(2) PLJR (SC)5, (Also reported in [(1999)3 Supreme Court Cases 134)], was relied upon in which it was held that : Discretion in the exercise of revisional jurisdiction should, therefore, be exercised within the four corners of Section 397, whenever there has been miscarriage of justice in whatever manner. Under sub-section (2) of Section 397, there is a prohibition to exercise revisional jurisdiction against any interlocutory order so that inquiry or trial may proceed without any delay. But the expression "interlocutory order" has not been defined in the Code. In Amar Nath V/s. State of Haryana this Court has held that the expression "interlocutory order" in Section 397(2) has been used in a restricted sense and not in a broad or artistic sense and merely denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an "interlocutory order". In Madhu Limaye V/s. State of Maharashtra a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding, cannot be held to be an interlocutory order. In Madhu Limaye V/s. State of Maharashtra a three Judge Bench of this Court has held an order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding, cannot be held to be an interlocutory order. In V. C. Shukla V/s. State this Court has held that the term "interlocutory order" used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the revisional power of the trial and the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub section (2) of Section 397 of the Code. 10. I fail to understand that why this decision was not considered by learned llnd Additional Sessions Judge, Begusarai while disposing of the criminal revision petition of petitioners. 11. In the present case, after taking cognizance against the petitioners under Sections 193, 194, 195 of IPC, the case was transferred to the Court of Shri A. K. Srivastava, Judicial Magistrate, 1st Class, Begusarai who, as stated above, by his order dated 15.5.2003, issued summons for appearance of petitioners. Since cognizance, has been taken against the petitioners and on the basis of that order of taking cognizance, summons have been issued for appearance of petitioners to face trial I, in view of the decision reported in the case of Rajendra Kumar Sitaram Pande and others V/s. Uttam and another (supra), find that order of learned Chief Judicial Magistrate was not an interlocutory order and it does not come within the purview of Section 397(2) of Cr.P.C. and revision against this order was maintainable. 12. 12. In this view of the matter, the order dated 1.12.2003 passed by learned llnd Additional Sessions Judge, Begusarai in criminal revision No.396 of 2003 is also not according to law and cannot be upheld. 13. In the result, this application is allowed and the order dated 17.4.2003 passed by learned Chief Judicial Magistrate, Begusarai in Barauni Police Station Non-first information report No.1 of 2003 and order dated 1.12.2003 passed by learned llnd Additional Sessions Judge in criminal revision No.396 of 2003 are quashed and set aside.