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2006 DIGILAW 1297 (PAT)

Prawesh Kumar Aggarwal v. State Of Bihar

2006-12-22

AJAY KUMAR TRIPATHI

body2006
Judgment 1. Heard learned counsel for the parties. 2. The petitioner has filed the present application invoking Sec. 482 of the Code of Criminal Procedure and has prayed for quashing of the order dated 18.8.2004 passed by the S.D.J.M., Gaya in connection with Complaint Case No. 475 of 2002, Trial No. 030 of 2004. 3. The petitioner is aggrieved by the above mentioned order since the S.D.J.M., Gaya, who had earlier closed the case for evidence before charge on 8.7.2004 has again reopened the same vide his order dated 18.8.2004 on a petition filed by the complainant under Sec. 311 of the Code of Criminal Procedure. 4. The only, if not the primary contention, of the petitioner is that the S.D.J.M., Gaya had no authority to review his earlier order as it is well settled by various decisions of not only this High Court but also of the Supreme Court that a criminal Court has no power of review. 5. Learned counsel for the petitioner relies on (2004) 7 SCC 338 in the case of Adalat Prasad vs. Rooplal Jindal as well as 2005 SCC (Cri) 190 in the case of Poonam Chand Jain vs. Fazru. 6. There is no dispute with regard to the legal proposition, which has been advanced by the counsel for the petitioner. This Court, however, has to see whether the above proposition advanced by the petitioner is tenable in the given facts and circumstances. 7. The Court narrates the events which culminated into the filing of the petition under Section 311 of the Code of Criminal Procedure and the consequential order, which was passed on 18.8.2004. Smt. Manisha Aggarwal, wife of the petitioner Prawesh Kumar Aggarwal had to file a complaint before the Court in Gaya that after solemnisation of marriage as per Hindu rites on 14.5.1997, she came to her in-laws house and she carried enough cash, ornaments, clothes and other gifts with her. Prior to her marriage the father of the complainant had already transferred 10 decimals of land in her favour on 3.5.1997, which is situated at Ratu Road, Ranchi. She alleges that the husband along with the other named accused tried to put pressure upon her not only for further demand for money etc. but also to force her to transfer the land in question standing in her name in favour of her husband. She alleges that the husband along with the other named accused tried to put pressure upon her not only for further demand for money etc. but also to force her to transfer the land in question standing in her name in favour of her husband. On initial resistance by the complainant, she was ill-treated. The details of which are stated in the complaint petition. In fact she alleges that there was an effort made to even douse her with kerosene and set her ablaze. She was compelled to file the complaint case No. 475/2002 in the Court of the Chief Judicial Magistrate, Gaya and in the said case after solemn affirmation and evidence, cognizance was taken against the accused persons under Sections 498(A), 323, 380 and 34 of the Indian Penal Code on 26.8.2002. The matter thereafter came to be fixed on various dates for evidence before charge. It is alleged by the petitioner that various dates were fixed but no witnesses turned up for evidence before charge including the complainant and, therefore, one or two witnesses were examined but on most of the dates since no witnesses turned up the learned Magistrate vide his order dated 8.7.2004 closed the evidence of the complainant and fixed 23.7.2004 for framing of charge. 8. A counter affidavit has been filed by opposite party no.2 i.e. the wife and she has brought on record the fact that she was ready to lead evidence and produce witnesses but the fact was that her matter relating to the dispute was referred to Lok Adalat and some kind of an effort was made on behalf of the present petitioner and other accused persons to bring about a reconciliation, however, it turned out that it was a mere time buying ploy as thereafter the petitioner on 24.6.2003 filed a Matrimonial Suit No. 82/2003 before the Principal Judge, Family Court, Ranchi. This matrimonial suit was intentionally filed at Ranchi to distract her and harass her from pursuing her complaint at Gaya. She specifically alleges that she being a hapless lady had quite a trying time to fight two litigations one at Ranchi and another at Gaya. This matrimonial suit was intentionally filed at Ranchi to distract her and harass her from pursuing her complaint at Gaya. She specifically alleges that she being a hapless lady had quite a trying time to fight two litigations one at Ranchi and another at Gaya. She further states in the counter affidavit that for several months the Magistrates Court at Gaya was vacant due to the same even when she was available her evidence was not recorded only one witness could be examined on her behalf on 25.5.2004 and he has supported the case of the prosecution. As for the date on 8.7.2004 is concerned she states that she had no knowledge about the date as the same was not communicated or informed to her as she lives 30 Kms. away from Gaya and, therefore, on that particular day she did not appear with the witnesses and this led to closing of evidence before charge in absence of any time petition. She further states that there could be some mischief having been played as it was open to the Court to issue processes for seeking attendance of witnesses instead of hurriedly closing the evidence before charge. 9. After 8.7.2004 the next date fixed by the Court for framing of charge was 23.7.2004. On that date she filed a petition under Section 311 of the Code of Criminal Procedure pleading to the court that it should invoke its discretionary power and allow her to lead evidence, because if it is not done, it will cause grave and serious prejudice to her case due to hasty step taken on 8.7.2004. 10. The learned Magistrate considered the petition under Sec. 311 of the Code of Criminal Procedure and vide his order dated 18.8.2004 allowed the petition in the interest of justice so that the case of the complainant is not defeated by not giving her adequate and full opportunity to place her evidence before the Court. 11. It is this order allowing the petition under Sec. 311 of the Code of Criminal Procedure dated 18.8.2004 that has aggrieved the petitioner to file this application under Section 482 of the Code of Criminal Procedure before this Court. 12. 11. It is this order allowing the petition under Sec. 311 of the Code of Criminal Procedure dated 18.8.2004 that has aggrieved the petitioner to file this application under Section 482 of the Code of Criminal Procedure before this Court. 12. Learned counsel for the opposite party no.2 contends that there is no legal infirmity in the order of the Magistrate dated 18.8.2004 and what the learned Magistrate had done is strictly in order as well as in consonance with a decision of the Supreme Court rendered in the case of Shailendra Kumar vs. State of Bihar (2002)1 SCC 655 . The Supreme Court has held after noticing the provisions under Sec. 311 of the Code of Criminal Procedure as under:- "311. Power to summon material witness, or examine person present-Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case. (emphasis supplied) 11. Bare reading of the aforesaid section reveals that it is of a very wide amplitude and if there is any negligence, laches or mistakes by not examining material witnesses, the courts function to render just decision by examining such witnesses at any stage is not, in any way, impaired. This Court in Rajendra Prasad vs. Narcotic Cell observed: (SCC p. 113, para8) "After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." 13. The counsel for opposite party no.2, however, submits that the contention of the petitioner that the Magistrate did not have the requisite power to review his earlier order in line of the above legal provision is misplaced and this submission has been made only to mislead the court with regard to the actual facts as well as legal provision in this regard. This Court is in agreement with the above submission of opposite party no.2 and is of the opinion that this is not a case where the power of review has been exercised by the learned Magistrate but is a case where the procedural law laid down for the administration of criminal justice in the Code of Criminal Procedure has been exercised in a proper and legal manner. 14. Learned counsel for the opposite party further produced an order dated 27.9.2006 of this Court passed in Cr. Misc. No. 40192 of 2005 in the case of Munu Devi & Ors. vs. The State of Bihar & Anr.. On perusal of the above order it emerges that other accused persons minus the present petitioner i.e. the husband moved this Court for quashing of the order passed by the learned 1st Additional Sessions Judge, Gaya as well as the order dated 25.4.2005 passed by the S.D.J.M. in which the discharge petitions filed by those petitioners were rejected. An effort was made by the other accused to scuttle the entire criminal case on the jurisdictional question. However, this High Court vide order dated 27.9.2006 dismissed the application filed under Sec. 482 of the Code of Criminal Procedure and held that the courts at Gaya had the necessary jurisdiction to try the case. This above facts have just been noticed with the object that as to how the accused persons are trying to scuttle the process of law by various means which are available before them. In the present case it is the petitioner i.e. the husband who wants to bring to abrupt end the trial which has been initiated in the Court below by the wife i.e. opposite party no.2. 15. This Court after considering the above facts and the law stated above is of the considered opinion that the order dated 18.8.2004 passed by the learned S.D.J.M., Gaya is in order and the challenge thrown by the petitioner by way of an application under Section 482 of the Code of Criminal Procedure is misplaced and the same deserves to be dismissed. It will be open to the trial Court to proceed in the matter in accordance with law. 16. In view of the order passed above, this application is accordingly dismissed.