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2009 DIGILAW 1586 (PAT)

Brahamdeo Sah v. State Of Bihar

2009-12-24

SAMARENDRA PRATAP SINGH

body2009
JUDGEMENT 1. Heard learned counsel for the parties. 2. The petitioner has prayed for quashing order dated 10.9.2004, passed in Criminal Revision No. 113 of 2003, by Additional Sessions Judge-cum-Fast Track Court No.3, Patna by which he confirmed order dated 28.7.2003, passed by Addl. Chief Judicial Magistrate, Khagaria in GR no. 339/2000, whereunder he allowed the prayer of opp. party no.2 contained in his petition dated 9.6.2003 giving him permission to make pairvi and to continue the proceeding in place of informant of the case, who died on 31.5.2003, and also allowed prayer of opp. party no.2 under Section 311 Cr.P.C. to adduce the evidence of additional witness whose names do not find mention in the column of charge sheet. 3. One Navin Kumar who is now deceased filed a written report dated 12.4.2000 giving rise to Alauli Police Station case no. 37 of 2000, under Sections 341, 342, 323, 504, 379 instituted against the petitioner and opp. party 2nd set i.e. Opposite party numbers 3 to 8. Police after investigation submitted charge sheet u/s 323 I.P.C. only and cognizance was also taken u/s 323 I.P.C, which is a non- cognizable offence. 4. The petitioner submits that Navin Kumar had examined himself as a witness. However, he later on died. Two years after death, his uncle Rajeshwar Yadav filed two petitions before the learned Magistrate one for impleading him as an informant to continue the case and second for summoning additional witnesses u/s 311 Cr.P.C The learned Magistrate allowed both the petitions vide orders dated 28.7.2002. The accused persons namely the petitioner and opp. party 2nd set, being aggrieved preferred revision before the Sessions Court being Revision case no. 113 of 2003. The aforesaid revision application was dismissed vide order dated 10.9.2003. 5. Counsel for the petitioner submits that the learned Magistrate erred in law, in allowing the uncle of the deceased informant, namely, Navin Kumar to be substituted in his place in pursuing the case. The submits that issuance of summons to the witnesses on the application of opp. party no.2 is also erroneous as the witnesses named therein, were neither named in the FIR nor in the charge sheet. Furthermore his statement u/s 161 Cr.P.C. has not been recorded. Besides this, the aforesaid application u/s 311 of the Cr.P.C. was made two years after the death of the informant. 6. He submits that opp. party no.2 is also erroneous as the witnesses named therein, were neither named in the FIR nor in the charge sheet. Furthermore his statement u/s 161 Cr.P.C. has not been recorded. Besides this, the aforesaid application u/s 311 of the Cr.P.C. was made two years after the death of the informant. 6. He submits that opp. party no.2 could not have been substituted in place of informant to continue the case in view of explanation of Section 2(d) of the Cr.P.C. which reads as follows: Explanation.A report made by a police officer in a case which discloses after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. 7. It would also be relevant to quote Section 2(d) of the Cr.P.C. which is as follows: 2(d). "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but does not include a police report. 8. He thus submits that opp. party no.2 could not have been substituted in place of informant when he died. Secondly, it was the Investigating Officer, through the learned Addl. P.P. who could have filed a petition for summoning of addl. witness. 9. Learned counsel for the State and opp. party submits that the instant application u/s 482 of the Cr.P.C. is in garb of second revision and the same is not maintainable in view of judgment rendered in case of Debashish Bose V/s. State of Bihar, reported in 2001(4) PLJR 212 :2001 (2) PCCR 497 (PHC). 10. As the issue of maintainability has been raised, I will take up this issue first. 10. As the issue of maintainability has been raised, I will take up this issue first. Learned counsel for the petitioner submits that dismissal of revision application is not a bar u/s 397(3) Cr.P.C. for application u/s 482 of the Cr.P.C. According to him, bar of second revision u/s 397(3) Cr.P.C. would not prevent High Court from exercising its inherent power u/s 482 Cr.P.C. In support of his contention, learned counsel for the petitioner has referred to decisions rendered in case of Surendra Singh and Others V/s. The State of Bihar and Others 1990(2) PLJR 693 (Special Bench); Krishnan and another V/s. Krishnaveni and another (1997)4 Supreme Court Cases 241; Jitender Kumar Jain V/s. State of Delhi and others (1998) 8 SCC 770 ; Kush Kumar @ Kushwal V/s. The State of Bihar and others 2000(3) PLJR 199 ; and Md. Nassim V/s. The State of Bihar and others, 2000(4) PLJR 1 : 2000 (1)PCCR 637 (PHC). 11. In my view, relevance of the petitioner in case of Surendera Singh (supra) (Special Bench) is misconceived. In the aforesaid case, the Special bench held that a petition under Section 482 Cr.P.C. would not be maintainable in view of bar of Section 397(3) Cr.P.C. once a revision petition under Section 397(1) Cr.P.C. filed before the Sessions Judge is dismissed by a Sessions Court. The Special bench held in such circumstances a petition under Article 227 of the Constitution would be maintainable as no statutory bar under the Cr.P.C. would affect the power of superintendence of the High Court engrafted therein. The Special bench however obeserved that once as revision under Section 397(1) of the Cr.P.C. is dismissed by a Sessions judge, then only in exceptional circumstances and interference is warranted under Article 226 of the Constitution. Para 17(iv) of the Special bench decisions reads as follows: Where petitioner has already invoked the revisional jurisdiction of the Sessions judge under Section 397 of the Code and his second revision application to this Court is barred under Section 397(3) Cr.P.C. it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of the superintendence is not meant to circumvent the statutory bar. 12. 12. However, the Apex Court in (1997)4 SCC 241 & (1998)8 SCC 770 has held that an application under Section 482 Cr.P.C. would be maintainable even after dismissal of an application in revision by the Sessions Court under Section 397(1) Cr.P.C. 13. In case of Krishnan and another V/s. Krishnaveni and another, reported in (1997)4 SCC 241 , the Apex Court held that second revision before the High Court in form of Section 482 Cr.P.C, after dismissal of first one by the Court of Sessions is not barred u/s 397(3)Cr.P.C. However, the Apex Court observed that such inherent power u/s 482 Cr.P.C. must be used sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. It would be useful to quote para 14 of the aforesaid judgment which is as follows: In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the Courts below. It remitted the case to the Magistrate for decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has lefts the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal. 14. In case of Jitender Kumar Jain (supra), the Apex Court was also examining the issue of maintainability of quashing application u/s 482 Cr.P.C. after dismissal of 1st revision application in Sessions Court. The High Court had held that quashing application which in substance is form of revision, is barred u/s 397(3) Cr.P.C, as no second revision would lie, once revision petition preferred by the appellant has been dismissed by the Court of Sessions. The High Court had held that quashing application which in substance is form of revision, is barred u/s 397(3) Cr.P.C, as no second revision would lie, once revision petition preferred by the appellant has been dismissed by the Court of Sessions. The Apex Court setting aside order of High Court observed that Court of Sessions is subordinate to High Court and as such its proceeding is open to scrutiny u/s 482 Cr.P.C. The relevant extract of aforesaid judgment is quoted hereinbelow. We are of the view that the High Court failed to distinguish its separate powers under Section 397 of the Code of Criminal Procedure as also under Section 482 of the said Code. It is true that a second revision petition does not lie before the High Court when one is dismissed by the Court of Session. Still the Court of Session is a Court subordinate to the High Court and, as such, its proceedings are open to scrutiny by the High Court in exercise of its inherent power under Section 482 of the Code of Criminal Procedure. The High Court in these circumstances, should not have dismissed the petition of the appellant on the premise as it has done. 15. The case law relied by the counsel for opposite party number 2 in case of Debasis Bose V/s. State of Bihar, reported in 2001(4) PLJR 212 : 2001 (2) PCCR 497 (PHC) would not be of any help, rather the same runs contrary to his contention. Para 7 of the said judgments reads as follows: It is true that in the case of Surendra Singh (supra) a Special Bench of this Court has held that when the revision petition under Section 397(1) of the Code filed before the Sessions judge was dismissed, the petition under Section 482 of the Code is not maintainable, but subsequently in several decisions the Apex Court has dealt with this question and has observed that the High Courts power under Sections 482 and 397 of the Code is separate from each other. Their Lordships are of the view that though it is true that Second Revision petition does not lie before the High Court, when one is dismissed by the Court of Sessions, still the Court of Session is a Court subordinate to the High Court and, as such, Title suit proceedings are open to scrutiny the High Court in exercise of its inherent power under Section 482 of the Code of Criminal Procedure. This view has been taken in the case of Jitendra Kumar Jain V/s. State of Delhi and others; (1998) 8 SCC 770 . The same view has been expressed by this Court in the case of Kush Kumar @ Kushal V/s. The State of Bihar and ors; 2000(3) PLJR 199 9 in which reliance has been placed in the case of Krishnan and another V/s. Krishnaveni and another; (1997)4 SCC 241 . Moreover, this Court has held in the case of Md. Nassim V/s. The State of Bihar and others; 2000(4) PLJR 1 : 2000 (1) PCCR 637 (PHC), that the High Court under Section 382 of the Code can interfere in the revisional order passed by the Court below if it leads to miscarriage of justice. In view of this, I find no substance in the first contention of Mr. Mishra. 16. In view of the above discussions, this Court is of the view that the High Court under power of superintendence can entertain an application filed under Section 482 Cr.P.C. even if the Revision filed by the same party has been dismissed by Sessions Court. However, such power u/s 482 Cr.P.C. is to be exercised sparingly to prevent miscarriage of justice and to secure ends of justice. Thus I find that the instant quashing application is maintainable. 17. This takes us to the next issue, whether the impugned order passed by the Courts are sustainable in law. The order of the learned Magistrate substituting the uncle of deceased as informant/complainant is in teeth of explanation to Section 2(d) of the Cr.P.C. which provides that after investigation if police report discloses non cognizable offence, then such report would be treated as complaint. Thus the Court erred in law in substituting the nephew of informant on his. petition as complainant, where police has submitted charge sheet under non-cognizable offence and cognizance has also been taken under non-cognizable offence. Thus the Court erred in law in substituting the nephew of informant on his. petition as complainant, where police has submitted charge sheet under non-cognizable offence and cognizance has also been taken under non-cognizable offence. Such application, if any, for examination of additional witnesses could be filed by Investigating Officer through the learned Public Prosecutor u/s 311 Cr.P.C. 18. Such report under non-cognizable offence by police after conclusion of investigation would be deemed to be a complaint, if the Court also accepts the opinion of police that only a non-cognizable offence is made out. In case, Court differs with the police report and finds that a cognizable offence is also made, then the case would proceed as a regular police registered case. In view of the above, the impugned orders passed by both the Courts below are set aside, with liberty aforesaid in the preceding paragraph.