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2006 DIGILAW 244 (PAT)

Kamal Ahmad @ Sukhari v. State Of Bihar

2006-03-22

REKHA KUMARI

body2006
Judgment 1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 for quashing the order dated 13.9.2002 passed by the Additional Chief Judicial Magistrate, Hilsa in Complaint Case No. 174-C of 2002 by which he has taken cognizance against the petitioners for the offences under Sections 323, 341, 504, 295-A and 295/34 of the Indian Penal Code and Section 3(v)(x)(iv) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, and has committed the case to the Court of the Special Judge, Nalanda. 2. Heard. 3. The prosecution case, as disclosed on the complaint petition in nutshell is that there was a statue of Baba Saheb Bhim Rao Ambedkar installed on a Government land near the District Board Office. On the date of occurrence the petitioner armed with khanti, kudal etc. and by using insulting language uprooted statue and also broke it. When the complainant (opposite party No. 2) and other witnesses objected, they insulted them also by calling them Harijan and also assaulted them by fists and slaps. The complainant went to the police station but no case was lodged there. He also informed the District Magistrate and the Superintendent of Police but no action was taken and so the opposite party No. 2 filed the complaint. It appears that after the filing of the complaint the complainant was examined on solemn affirmation and thereafter four witnesses were examined in enquiry under Section 202, Cr PC. They all supported the allegations made in the complaint petition. The learned Magistrate after considering the statement of the complainant on S.A. and the statement of the witnesses found a prima facie case for the above offences against the petitioner and passed the impugned order. 4. Learned counsel for the petitioners submitted that the entire allegation made in the complaint petition is false. There was no statue of B.R. Ambedkar at the alleged place of occurrence at the time of occurrence. In fact the complianant-opposite party No. 2 who claims himself to be the Chairman of the so called "Ambedkar Nyaya Chetna Vichar Munch" tried to install the statue in order to grab the land which was objected to by the local people including the petitioners. The police was immediately informed. Sanha Entry No. 0458 dated 24.2.2002 (Annexure-2) was made. This issue was also raised in the Bihar Legislative Assembly and Bihar Vid-han Parishad. The police was immediately informed. Sanha Entry No. 0458 dated 24.2.2002 (Annexure-2) was made. This issue was also raised in the Bihar Legislative Assembly and Bihar Vid-han Parishad. The Superintendent of Police, Nalanda asked the Officer Incharge to enquire into the incident. The Ofticer Incharge submitted his report (Annexure 3) that there was no statue of Baba Ambedkar at the place of occurrence rather the same persons tried to install statue there. He further submitted that in the daily "Hindustan" (Annexure-4) a news was also published that a statue was being installed by some people in order to grab public land. He further submitted that when some controversy arose on the point of installation of statue on the disputed site a Committee was constituted to sort out the problem of installation of statue at a suitable place. The opposite party No. 2 also took part in the meeting and agreed that the statue will be installed at a suitable place selected by the Committee. This also shows that there was no statue at the place of occurrence and there was no question of any incident as alleged. The petitioners have also filed the relevant extracts of the proceedings (Annexure-5). 5. The petitioners have also filed a news item published in the local Hindustan (Annexure-6) and the learned counsel submitted that the news also confirms the episode regarding installation of the statue. He further submitted that in view of the above documents, it would be a misuse of the process of the Court to proceed with the case. 6. It is well settled that at the time of taking cognizance, the Magistrate has only to see as to whether the allegations made in the complaint disclose any offence. It is also settled that at this stage the defence of the accused cannot be considered and the High Court in exercise of the inherent power under Section 482, Cr PC cannot also consider the defence of the accused. The annexures filed with the application filed under Section 482, Cr PC also cannot be treated as evidence without being tested and proved and so should not be acted upon by the High Court. 7. The annexures filed with the application filed under Section 482, Cr PC also cannot be treated as evidence without being tested and proved and so should not be acted upon by the High Court. 7. Therefore, when the allegation in the complaint petition discloses some offences under the Indian Penal Code as also some offences under the Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act and the allegation has been supported by the complainant in his statement on S.A. and the other witnesses. I do not want to interfere with the impugned order. The petitioners are at liberty to raise their points at the appropriate stages during trial. This application is thus, dismissed.