Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 524 (PAT)

Md. Faiyaz Alam v. State Of Bihar

2008-03-20

ABHIJIT SINHA

body2008
Judgment 1. The complainant of Complaint Case No. 1223/2002 is aggrieved by order dated 29.8.2005 passed by the learned 2nd Additional Sessions Judge, Purnea, in Criminal Revision No. 149/2003, whereby he has dismissed the aforesaid revision which had been preferred against order dated 29.4.2003 passed in the aforesaid complaint case by Sri R. Krishna, Judicial Magistrate, Purnea, by which he had dismissed the complaint. 2. The complainant had filed the aforesaid complaint case against O.P. Nos. 2 to 13 impleaded herein inter alia alleging commission of offences under Sections 149, 392/34, 109 and 120B I.P.C. at their hands. It has been stated inter alia that the complainant is a businessman and possesses landed property in his village Kochaili within Amour Police Station. it is alleged that on 9.10.2002 he had been to his village to look after his landed property and also to collect the money from one Master Zakiruddin who had taken loan of Rs. 10,000/- from him and had promised to return the same by 10.10.2002. It is said that since the complainant had gone to the village he approached Master Zakiruddin for payment and, in fact, the aforesaid sum was paid to him at 2 P.M. in the presence of accused Azmal who was present at the darwaza and had seen the payment being made. It is alleged that later while the complainant was returning from his village home in the evening on his motorcycle and had reached Kaliwari Chowk near Dakaitadhar all the accused persons armed with deadly weapons and forming an unlawful assembly and in conspiracy with each other stopped the complainant. It is alleged that accused Azmal took out Rs. 10,000/- from the handbag of the complainant and the accused having assaulted the complainant fled as witnesses started assembling. 3. It is said that the complainant filed the complaint petition before the Chief Judicial Magistrate, Purnea, as the police refused to record the F.I.R. and in the said complaint he named Md. Zulfequar, Md. Mouzzam and Akhtar Hussain as his witnesses. The said complaint was transferred to the Court of Sri R. Krishna who examined the complainant on S.A. and also recorded the statement of witness Akhtar Hussain. Thereafter the complainant filed a petition in the Court stating that his witnesses Md. Zulfequar and Md. Zulfequar, Md. Mouzzam and Akhtar Hussain as his witnesses. The said complaint was transferred to the Court of Sri R. Krishna who examined the complainant on S.A. and also recorded the statement of witness Akhtar Hussain. Thereafter the complainant filed a petition in the Court stating that his witnesses Md. Zulfequar and Md. Mouzzam had been gained over by the accused persons and they were not inclined to depose since they were being threatened with dire consequences by the accused persons and on the aforesaid grounds he gave up his opportunity of producing those witnesses for their examination. 4. The learned Magistrate having considered the materials available on record dismissed the complaint primarily on two issues, namely, that Zakiruddin, an important witness had not been examined and that there was contradiction in the evidence of witness Akhtar Hussain. The revision preferred against the said order of dismissal being Cr. Revision No. 149/2003 was also dismissed by the learned Second Additional Sessions Judge, Purnea, on the ground that the said order was legally and factually tenable. 5. The impugned order had been assailed on the ground that the learned Magistrate had not disposed of his pending petition regarding the non-examination of his witnesses named in the complaint as they had been gained over and that there had been an error in record inasmuch as that although CW-1 Akhtar Hussain had fully supported the complainants case, the learned Magistrate observed that there was contradiction in his evidence. 6. On the other hand the learned counsel for the O.Ps. sought to support the impugned order by stating that there was no error in the orders of either the learned Magistrate or of the Sessions Court and both the Courts had rightly dismissed the complaint/revision. It was also sought to be submitted that the petitioner herein was filing a second revision in the garb of a quashing application which was not permissible under Section 397(2) Cr.P.C. 7. It was also sought to be submitted that the petitioner herein was filing a second revision in the garb of a quashing application which was not permissible under Section 397(2) Cr.P.C. 7. It is by now well settled that the scope of inquiry under Section 202 Cr.P.C. is extremely limited to the ascertainment of the truth or falsehood of the allegation made in the complaint and to find out from the materials placed before the Court whether a prima facie case for issue of process has been made out and for deciding a question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. At this juncture as observed in the case of Nagawwa V/s. Veeranna, AIR 1976 SC 1947 in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbability appearing on the basis of the complaint or in the evidence laid by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. 8. While examining/analyzing the materials on record as has been produced by the complainant the Magistrate is not required to look into the number of witnesses who have supported the complainants case at the inquiry. What he has to see is whether there is a prima facie evidence of a criminal offence or sufficient grounds for proceeding. "Sufficient grounds" do not mean sufficient grounds for conviction but such evidence as would be sufficient to put the accused on trial and not to see whether it would ultimately end in conviction of the accused. 9. The learned counsel for the petitioner has brought to my notice the evidence of CW-1, Akhtar Hussain, and from the same it does not appear that he has not supported the complainants case. Minor discrepancies here and there would not render his evidence non est or not worth consideration in support of the complainants case. To that extent I am of the opinion that both the learned Magistrate and the Revisional Court have erred. 10. There is another aspect of the matter. A petition had been filed by the complainant, to the effect, that his witnesses had been gained over by the accused persons. To that extent I am of the opinion that both the learned Magistrate and the Revisional Court have erred. 10. There is another aspect of the matter. A petition had been filed by the complainant, to the effect, that his witnesses had been gained over by the accused persons. The learned Magistrate has neither disposed of that petition nor he has considered the same while dismissing the complaint. The Revisional Court has also erred in holding that order of the learned Magistrate was legally and factually tenable. 11. When once a petition is filed the Magistrate is required to dispose of the same before proceeding any further. In the instant case he has neither disposed of the petition filed by the complainant nor he has taken into account the fact that the witnesses of the complaint had been gained over. 12. Due regard being had to the facts and circumstances of the case order dated 29.8.2005 of the Revisional Court as also order dated 29.4.2003 of the learned Magistrate are hereby set aside and the application is allowed. 13. The learned Magistrate will now proceed in accordance with law.