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2007 DIGILAW 680 (PAT)

Md. Manoowar v. State Of Bihar

2007-04-03

J.N.SINGH

body2007
Judgment 1. This application has been filed for setting aside order dated 3.5.2006 passed by learned Sessions Judge, Vaishali in Cr. Rev. No. 250 of 2003 dismissing the revision application filed by the accused-petitioner against the order dated 17.7.2003 passed by the Judicial Magistrate 1st Class, Hajipur taking cognizance against the petitioner and others under Sections 323, 341, 379, 452, 504 and 147/34 of the Indian Penal Code. 2. The complainant opposite-party No. 2 filed a complaint on 17.6.2003 before the Chief Judicial Magistrate, Vaishali against 17 named accused persons alleging therein that on 5.6.2003 while the son of the complainant was playing in the field, the son of one of the accused started beating him. When the complainant went into the field and asked about it, all the accused persons surrounded her and abused her and tried to assault her. The complainant ran to her house where she was followed by accused persons who entered in the house and assaulted the complainant and her daughter Akhtari Khatoon. Thereafter they took away some household articles from her house and Rs. 50,000/- which she had kept in the house for the marriage of her daughter. The complainant got her injuries treated by a village doctor and was about to lodge the case in the police station but the village people advised her to settle the matter through panchayati. When inspite of efforts the accused persons did not come in the panchayati, then the complainant lodged the complaint with delay. 3. Complainant was examined on solemn affirmation where she alleged that the accused persons had assaulted her and her four daughters. Issue of process was postponed and enquiry under Section 202, Cr PC was held by the learned Magistrate, In the enquiry Akhtari Khatoon as well as one Surendra Thakur and Md. Ainul Haque were examined as witnesses. On being satisfied with the evidence collected during enquiry, by order dated 17.7.2003 learned Judicial Magistrate First Class while taking cognizance ordered to issue processes against the accused persons under the aforesaid sections. 4. While assailing the cognizance order, learned counsel for the petitioner has submitted that the complaint was filed after inordinate delay. Ainul Haque were examined as witnesses. On being satisfied with the evidence collected during enquiry, by order dated 17.7.2003 learned Judicial Magistrate First Class while taking cognizance ordered to issue processes against the accused persons under the aforesaid sections. 4. While assailing the cognizance order, learned counsel for the petitioner has submitted that the complaint was filed after inordinate delay. He further submitted that in fact it was a malicious complaint and was in retaliation to an information lodged before the police by one Madina Khatoon, aunt of the petitioner, a copy of which has been annexed as Annexure-4 to the petition, with regard to an occurrence which took place on 5.6.2003 in which the complainant-opposite-party No. 2 is also an accused. Learned counsel for the petitioner submitted that in that case Madina Khatoon had sustained injuries and police had found the case true and had submitted charge-sheet in the case. In that case the complainant-opposite-party No. 2 had appeared on 20.6.2003 and had been granted bail and thereafter she filed the present complaint. Learned counsel for the petitioner further submitted that there is inherent contradictions in the evidence of the witnesses and the complainant and therefore, order taking cognizance and the entire proceeding of the case is fit to be quashed. 5. In support of his submissions learned counsel for the petitioner referred to an order of this Court passed in the case of Indu Shekhar Singh V/s. State of Bihar, 2001 (3) PLJR 706 . Complainant in that case had alleged paying bribe to the accused who -was an official of the State Pollution Control Board for the purpose of his appointment in the Board. On the basis of such complaint cognizance had been taken under Sections 161, 420 and 504 of the Indian Penal Code and processes were issued. The Court found that there was discrepancy in the statement of the complainant and his solemn affirmation with regard to the bribe paid and also found that the complainant of the case and others had moved this Court in writ jurisdiction for their regularisation which was dismissed. The Court also found that the complainant of the case was not an applicant at all for appointment in the Board in response to the advertisement and therefore, his claim of paying bribe to the accused for his appointment was inherently improbable. The Court also found that the complainant of the case was not an applicant at all for appointment in the Board in response to the advertisement and therefore, his claim of paying bribe to the accused for his appointment was inherently improbable. The case was decided on its own facts and the order taking cognizance and criminal prosecution was quashed. 6. Learned counsel for the petitioner further relied on a judgment of the Supreme Court in the case of Pepsi Foods Ltd. V/s. Special Judicial Magistrate, (1998) 5 SCC 749 : 1998 (1) East Cr C 171 (SC). In that case it has been held that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It has been further held that the Magistrate has to scrutinise the evidence, oral as well as documentary, and then come to the conclusion that the offence prima facie appears to have been committed by the accused. 7. On the other hand, learned counsel for he complainant-opposite- party submitted that sufficient reliable materials had been collected during enquiry justifying the order taking cognizance and therefore, the order of the learned Magistrate and the learned Sessions Judge are perfectly correct. 8. It is settled law that while issuing processes to the accused persons under Section 204, Cr PC, the Magistrate has to scrutinise the materials brought on record and the evidence collected during enquiry under Section 202, Cr PC for the purposes of his satisfaction that sufficient grounds have been made out for proceeding in the case. However, for this purpose the Magistrate has to limit his considerations to find out a prima facie case against the accused persons. At this stage, the Magistrate cannot hold a meticulous and critical examination of the evidence collected during enquiry which is required to be done at the trial stage. Once the Magistrate finds that if on the evidence collected during enquiry a prima facie case is made out against the accused persons, it is obligatory on he part of the Magistrate to issue processes to the accused persons for their appearance. 9. Once the Magistrate finds that if on the evidence collected during enquiry a prima facie case is made out against the accused persons, it is obligatory on he part of the Magistrate to issue processes to the accused persons for their appearance. 9. In my opinion, the discrepancy in the evidence as pointed out by the learned counsel for the petitioner, the plea of delay and the explanation put forth by the complainant for delayed filing of the complaint are matters of trial. The learned Magistrate taking into account the allegation made in the petition of complaint, the statement of the complainant on solemn affirmation and witnesses examined during the course of enquiry prima facie came to the conclusion that offence has been committed and accordingly took cognizance of the offence and directed for issuance of process. The revisional Court agreeing with the same dismissed the revision application. 10. In the circumstances, I do not find any infirmity in the order of the learned Sessions Judge as well as order taking cognizance and therefore, I do not find any merit in this application. The application is accordingly dismissed.