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2007 DIGILAW 1714 (PAT)

Vijay Kumar v. State Of Bihar

2007-11-05

DHARNIDHAR JHA

body2007
Judgment 1. Heard Mr. Anjani Kumar learned counsel for the petitioners, Sri Sunil Kumar for opposite party no. 2 and the learned A.P.P. 2. The present petition seeks quashing of prosecution initiated through Complaint Petition No. 274(C) of 2006 arising out of Harnaut P.S. Case No. 79 of 2006 by which the two petitioners have been summoned to stand their trial for offences under Sections 323, 379 and 504 of the I.P.C. 3. The prosecution case in short, as stated in the complaint petitiion, was that when the complainant was returning from Biharsharif with the witnesses named therein six persons including the two petitioners armed with pistol surrounded him. Petitioner Vijay Kumar put the pistol on the chest of the complainant and relieved him of an amount of Rs. 2000/-, a Cellular mobile phone as per the description in the complaint petition. 4. The complaint petition was sent to the police initially under Sec. 156(3) Cr.P.C. for investigation which reported the case palpably and maliciously false while submitting the final report and also presented the prosecution report for the prosecution of opposite party no. 2 and the final report was submitted. In the meantime opposite party no. 2 filed a complaint petition by way of protest and that petition was taken up for hearing and after the examination of the complainant on S.A. and the two witnesses during the enquiry the impugned order dated 13.3.2007 was passed. 5. The contention of Sri Kumar, learned counsel appearing for the petitioners has presented the background of the litigation leading to the filing of the earlier police case and the protest petition. It was contended that the petitioner who was a Junior Engineer had filed Bihar (Sohsarai) P.S. Case No. 392/04 under Sec. 364(A) read with Sec. 34 of the I.P.C. against opposite party no. 2 and others in which the police sent up the abovenamed opposite party for trial and on the date of occurrence as also that of filing of the complaint petition the said case was being tried by a court and petitioner no. 2 was a witness in that trial. It was contended that it appears patently absurd and inherent improbability that when the parties were at daggers drawn, the two petitioners could be committing the offence against their staunch enemy. The other aspect which was highlighted by Mr. 2 was a witness in that trial. It was contended that it appears patently absurd and inherent improbability that when the parties were at daggers drawn, the two petitioners could be committing the offence against their staunch enemy. The other aspect which was highlighted by Mr. Kumar was that in fact the prosecutioin has not been launched for securing the ends of justice, rather it had been filed in order to spitting at the accused and to satiate malicious intent of the complainant and thus it appears emerging from gross malice which opposite party no. 2 was nurturing against the petitioners. 6. Sri Sunil Kumar, learned counsel appearing for the opposite party no. 2 on the other hand, contended that there are definite allegations against the two petitioners who were duly identified and named in the complaint petition. It was further contended that the abovenoted Bihar (Sohsarai) P.S. Case No. 392/04 was tried and the opposite party no. 2 was acquitted by the judgment of acquittal rendered in Sessions Trial No. 214/05 on the 6th day of December, 2005. It was further contended that Basant Prasad, petitioner no. 2 could not be said to be prosecuted out of any malice. 7. Sri Kumar the learned counsel for the petitioners replied that Basant Prasad was one of the witnesses in the abovenoted Sessions Trial No. 214/05. 8. As regards the jurisdiction of this Court under sec. 482 Cr.P.C. it is well known that the same could be exercised very sparingly in some rare cases so as to quashing the prosecution. However, if the Court finds that the prosecution has been launched in order to spitting at the accused as also to satiate the malicious intent and without the purpose of seeking justice, then in that case the High Court could exercise its jurisdiction under Sec. 482 Cr.P.C. to quash the proceeding. There are certain other conditions also under which the prosecution could be qushed and that includes the one which indicates that if the allegations were patently absurd and inherently improbably in that case also the prosecution could not be allowed to proceed further. The above is the position of law as settled down by the Supreme Court in 1992 SCC (Cri.) 426, State of Haryana vs. Bhajan Lal. 9. The above is the position of law as settled down by the Supreme Court in 1992 SCC (Cri.) 426, State of Haryana vs. Bhajan Lal. 9. What is disturbing the most to this Court is that the Judicial Magistrates of the State are ignoring one of the relevant executive instructions of the High Court. The High Court has framed the rules for transacting the business in Criminal Courts and that is known as "Criminal Court Rules of High Court of Judicature", Rule No. 31 whereof is relevant to be quoted. It reads: "The examination of the complainant and the witnesses present, if any, is not to be the mere form, but an intelligent enquiry into the subject matter of the complaint carried far enough to enable the Magistrate to exercise his jurisdiction as to whether there is any sufficient ground for proceeding." The above Rule appears in Chapter. IV of the above noted Rules framed by the High Court under the heading "Complaint under sections 200-203 Cr.P.C." It is invariably being found that the Magistrates go on to examining a couple of witnesses or so of the complainant and without applying their judicial minds to the materials so brought on record proceed to summon invariably an accused. One must keep in his mind that passing a summoning order and directing the summons to be issued against the person encroaches upon the personal liberty of a person and that could not be done in the manner which could not conform to Rule 31 of the abovenoted rules. The abovenoted Rule states that the examination of the complainant and his witnesses is not to be a mere form, rather it has to be an intelligent enquiry to such an extent as to search out the ground to enable a Magistrate to summon an accused. What the words mere form mean? To me, the two words convey that the Magistrate holding an enquiry has to deeply indulge with the exercise; he has to involve his intelligence and wisdom to reach out to the truth. He has never to take serious business of holding enquiry with any detachment or indifference. He should shake himself off the formal, lethargic approach. He should not treat the enquiry under sec. He has never to take serious business of holding enquiry with any detachment or indifference. He should shake himself off the formal, lethargic approach. He should not treat the enquiry under sec. 202 Cr.P.C. as a mere routine work rather remind himself that it is very serious as his order has the effect on the liberty/rights of the two sides. If a proper enquiry, as above, is made into the truthfulness of the allegations and proper mind is applied so as to isolating the probability and other aspects of the case then it could be possible that unnecessary summoning orders are not passed nor the complaint petitions could wrongly be dismissed. 10 Coming to the facts of the case, undeniably the parties are at the daggers drawn from much before the date of occurrence. The complainant opposite party no. 2 was being prosecuted for an offence under Sec. 364(A) of the I.P.C. The F.I.R. was lodged by none else than petitioner no. 1 Vijay Kumar and the case was reported true. This could simply appear improbable and absurd that in such a situation and state of relationship between the two parties, a staunch enemy of opposite party no-. 2 shall come and commit offence as alleged. This is the reason on account of which the Court feels that the complaint was not the result of the desire of seeking justice rather it was an attempt of spitting at the accused so as to satiating the complainants malice. 11. Considering the facts and circumstances and other aspects discussed above, I find sufficient merit in the petition which is allowed and the impugned order is hereby quashed.