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2004 DIGILAW 998 (PAT)

Md. Nazrul @ Nazrul Mian v. State Of Bihar

2004-09-20

RADHA MOHAN PRASAD

body2004
Judgment 1. The miscellaneous application is directed against the order dated 10.7.2001 of the learned Sessions Judge, Begusarai whereby and whereunder the order dated 16.4.2001 passed by the Judicial Magistrate, 1st Class, Begusarai in G.R. No. 927/94 in exercise of power under section 323 Cr. P.C. transferring the case to the court of Sessions has been set aside on the sole ground that since a private person has no locus standi to raise the issue the order passed by the learned Magistrate cannot be sustained. 2. It appears that earlier on submission of final form cognizance was taken for the offence under section 435 I.P.C. Later after examination of six witnesses a partition u/s 323 Cr. PC. was filed before the learned Judicial Magistrate which was also signed by the Assistant Public Prosecutor for committing the case to the court of Sessions as the offence under section 436 I.P.C. is made out which is triable by the court of Sessions. The learned Magistrate by the order dated 16.4.2001 after considering the facts and circumstances, including the evidence on record prima facie found that the offence alleged comes under section 436 I.P.C. which is triable by the court of Sessions and accordingly, allowed the said petition and committed the case to the court of Sessions for trial. O.P. No. 2 filed a revision against the said order bearing Cr. Rev. No. 171/2001 before the learned Sessions Judge, Begusarai who passed the impugned order setting aside the order passed by the Magistrate on the sole ground that since a private person has no locus standi to raise the issue the order of the Magistrate cannot be sustained. 3. Learned counsel for the petitioner contended that the learned Sessions Judge has committed error in setting aside the order of the learned Magistrate on the sole ground that a private person has no locus standi to raise the issue by ignoring the fact that the petition under section 323 Cr. PC. was signed by the Assistant Public Prosecutor who was appearing for the prosecution. Moreover, according to him section 323 gives wide power to the learned Magistrate to commit a case to the court of Sessions at any stage even up to the trial stage before signing the judgment if it appears to him that the case is one which ought to be tried by the court of Sessions. Moreover, according to him section 323 gives wide power to the learned Magistrate to commit a case to the court of Sessions at any stage even up to the trial stage before signing the judgment if it appears to him that the case is one which ought to be tried by the court of Sessions. Learned counsel submitted that in fact the provision contained under section 323 leaves no scope for not committing the case to the court of Sessions if it appears to the learned Magistrate at any stage of the proceeding before signing the judgment that the case is one which ought to be tried by the court of Sessions. This is evident from the expression used in section 323 itself that he shall commit it to that court under the relevant provisions. 4. Learned counsel for the State also submitted that the power under section 323 is wide enough to commit a case to the court of Sessions at any stage of the proceeding before signing the judgment if the Magistrate on consideration finds that the case is one which ought to be tried by the court of Sessions. Learned counsel for the O.Ps. however, submitted that there is no error in the order of the learned Sessions Judge. According to him, the learned Sessions Judge has rightly found that since a private person has no locus standi to raise the issue the learned Magistrate was not legally justified in entertaining the petition filed under section 323 and committing the case to the court of Sessions. In support of this, he placed reliance on the decision of the Apex Court in the case of Thakur Ram & Ors. vs. the State of Bihar, reported in AIR 1966 S.C. 911 . 5. I am unable to accept the submission of the learned counsel for O.P. No. 2. In the case before the Apex Court the facts were that an attempt to have the case committed to the court of Sessions failed right in the beginning. Thereafter an application for commitment filed after 15 months was rejected by the Magistrate on the ground that the case had already entered the defence stage and the attempt to have the committal was very belated. The third unsuccessful attempt to have the committal was made when the case had advanced further and was actually closed for judgment. Thereafter an application for commitment filed after 15 months was rejected by the Magistrate on the ground that the case had already entered the defence stage and the attempt to have the committal was very belated. The third unsuccessful attempt to have the committal was made when the case had advanced further and was actually closed for judgment. The Apex Court held that the revisional court ought not to with propriety interfere in such circumstances unless there were strong grounds to justify interference. The Apex Court also found that it would be a terrible harassment to the accused persons now to be called upon to face a fresh trial right from the beginning which would certainly be the result if the Magistrate committed the appellant for trial by a court of Session. In that background the Apex Court held that in a case which has proceeded on a police report a private party has no locus standi and observed that barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book. The Apex Court in fact after considering the lapses on the part of the prosecution quashed the order of the Sessions Judge as affirmed by the High Court and directed that the trial to proceed before the Magistrate. 6. In the present case, there is no question of any lapses in the part of the prosecution. In fact from the order of the learned Magistrate it appears that during the trial the evidences were led and on consideration of evidence of the witnesses he found that the offence under section 436 I.P.C. was made out which was triable by the court of Sessions and thus, after entertaining the petition filed under section 323 which was also signed by the Assistant P.P. committed the case to the court of Sessions in which I do not find any error. On the contrary, this Court finds that the learned Sessions Judge has committed an error in setting aside the order on the ground that the petition was filed by a private person who had no locus standi to raise the issue and completely ignored the fact that the said petition was also signed by the Assistant Public Prosecutor as has been noticed by the learned Magistrate in his order dated 16.4.2001. The learned Sessions Judge has not found any error on record with respect to the said finding of the learned Magistrate that the petition was also signed by the Assistant Public Prosecutor. 7. In that view of the matter, the order passed by the learned Sessions Judge cannot be sustained and it is accordingly set aside. The Sessions Judge is directed to proceed with the case in accordance with law. 8. The miscellaneous application is thus allowed.