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2007 DIGILAW 1293 (PAT)

Suneeta Kumari v. State Of Bihar

2007-08-06

GHANSHYAM PRASAD

body2007
Judgment 1. Heard 2. This application has been filed for quashing of the order dated 26.4.2006 passed by Additional Sessions Judge-XII, Patna in Cr. Rev. No. 650 of 2005 thereby he has set aside the order dated 7.7.2005 passed by S.D.J.M., Patna in Danapur P.S. Case No. 273 of 2000 rejecting the petition filed by the opposite parties under sec. 239 of the Cr.P.C. 3. The fact of the case is that the petitioner-informant lodged fardbeyan against the opposite parties before Danapur P.S. upon which the police registered Danapur P.S. Case No. 273 of 2000 under sections 498A, 323, 353/34 of the I.P.C. After investigation, the police submitted chargesheet against the opposite parties. Accordingly, cognizance under the above sections including under sections 3/4 of the Dowry Prohibition Act was taken. In course of the trial, the accused- opposite parties filed a petition under section 239 of the Cr.P.C. for discharge which was rejected by the learned S.D.J.M. and directed the opposite parties to remain physically present for framing of the charge under sections 406 and 323 of the I.P.C. The accused- opposite parties preferred revision against that order, which has ultimately been allowed by the impugned order. 4. In course of the submission, the learned counsel for the petitioner submitted that the revision has been allowed without hearing the petitioner-complainant only on defence material. It is further submitted that on law also the impugned order is not maintainable. He has wrongly held that cognizance under sec. 323 Cr.P.C. is barred by limitation. 5. On the other hand, the learned counsel for the opposite parties supported the order and submitted that in a revision the informant is not necessary party. It is the State which is only necessary party. The impugned order has been passed after giving opportunity to the State counsel. Reliance has also been placed on a decision of the apex court reported in 1996 Supreme Court 911 (Thakur Ram & ors. vs. State of Bihar at paragraph-9). It is further submitted that the learned lower court has rightly set aside the order of the learned Magistrate as no case was made out against the opposite parties. 6. So far point of notice to the informant in revision is concerned, the learned counsel for the opposite parties has rightly submitted that the informant is not a necessary party. It is the State which is deemed to be aggrieved party. 6. So far point of notice to the informant in revision is concerned, the learned counsel for the opposite parties has rightly submitted that the informant is not a necessary party. It is the State which is deemed to be aggrieved party. Therefore, bearing a fiew exception, the court of the revision is not obliged to implead the informant as party. Similar opinion has been expressed in the above decision of the apex court. 7. However, so far merit of the impugned order is concerned, I find apparent illegality. Under sec. 239 Cr.P.C. the Magistrate is entitled only to consider the documents and material submitted by the police under sec. 173 Cr.P.C. At that stage, the court is not obliged to consider the documents of the defence and no order of discharge can be passed on the basis of such documents. 8. In this case, the learned Additional Sessions Judge has set aside the order of the Magistrate passed under sec. 239 Cr.P.C. purely on the documents of the defence i.e. documents of Complaint Case No. 253(C) of 2000 filed by one of the accused against the informant and others. He has not cared to look into the documents submitted by the police under sec. 173 Cr.P.C. 9. The other glaring illegality is that the learned court has held that the prosecution of the Opposite parties under sec. 323 I.P.C. is barred by limitation under sec. 468(2)(b) of the Cr.P.C. It is quite apparent that the learned Additional Sessions Judge has not properly appreciated sec. 468 Cr.P.C. He has to miss to consider Sub Section (3) of Section 468 Cr.P.C, which is as follows: "468(3). For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with refernce to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment." 10. In this case, cognizance under sec. 323 Cr.P.C. has been taken alongwith some grave offences. Therefore, section 468(3)(b) Cr.P.C. is not applicable which provides limitation of one year. Apart from it, according to F.I.R. date of occurrence is 10.6.1996 to 6.7.2000. The cogniznce was taken on 8.9.2000 i.e. well within the period of one year. 11. Thus, having regard to the facts and circumstances of the case, this application is allowed. Therefore, section 468(3)(b) Cr.P.C. is not applicable which provides limitation of one year. Apart from it, according to F.I.R. date of occurrence is 10.6.1996 to 6.7.2000. The cogniznce was taken on 8.9.2000 i.e. well within the period of one year. 11. Thus, having regard to the facts and circumstances of the case, this application is allowed. The impugned order is hereby quashed and the matter is remitted back to the Additional Sessions Judge for fresh decision in the light of the above finding and observation.