Research › Search › Judgment

Patna High Court · body

2009 DIGILAW 526 (PAT)

Kameshar Kunwar v. State Of Bihar

2009-04-02

ABHIJIT SINHA

body2009
JUDGEMENT 1. This application by the 10 petitioners who are arrayed as accused in Protest- cum-Complaint Case No. CR 1043 of 2002 have prayed for the quashing of the order dated 19.4.2005 passed in Criminal Revision No. 779 of 2003 by the learned First Additional Sessions Judge, Madhubani, wherein it has been observed that a prima facie case is made out under Sections 147, 323, 379 and 506 I.P.C. against the petitioners/accused persons and, therefore, in the light of the aforesaid order of the learned First Additional Sessions Judge, Madhubani, the complainant is directed to furnish requisites so as to issue summons against the accused persons as also the order dated 23.4.2007 passed in Criminal Revision No. 1474 of 2005 by the learned Sessions Judge, Madhubani, whereunder he dismissed the revision application preferred against the order dated 22.8.2005 by the petitioners. 2. The instant case has a chequered history which may be narrated briefly. It appears that one Panchu Ram, impleaded herein as O.P. No. 2 filed Complaint Petition No. 969 of 2001 arraying the petitioners as accused which on being sent to the concerned police station under Section 156(3) Cr.P.C. was registered as Rajnagar P.S. Case. No. 171 of 2001 under Sections 147, 323, 379 and 506 I.P.C. The police after due investigation submitted final form finding the accusations to be incorrect. It further appears that the protest petition which had been filed by the complainant during the pendency of the investigation was taken up as a complaint pase bearing CR No. 1043 of 2002 after accepting the final form and having held an inquiry under Section 202 Cr.P.C. the learned Chief Judicial Magistrate dismissed the said complaint under Section 203 Cr.P.C. The complainant preferred Criminal Revision No. 779 of 2003 before the Sessions Court and the same was disposed of by the learned First Additional Sessions Judge vide order dated 19.4.2005 whereby while allowing the revision he "remanded back the case to the learned Chief Judicial Magistrate or his successor in office for re-inquiry and for passing necessary orders according to law". 3. It further appears that the learned Chief Judicial Magistrate, Madhubani, after remand of the case vide order dated 22.8.2005 observed as follows:- "From perusal of the order dated 19.4.2005 passed by the learned 1st Addl. Sessions Judge, Madhubani in Cr. Rev. 3. It further appears that the learned Chief Judicial Magistrate, Madhubani, after remand of the case vide order dated 22.8.2005 observed as follows:- "From perusal of the order dated 19.4.2005 passed by the learned 1st Addl. Sessions Judge, Madhubani in Cr. Rev. No. 779/03, it appears that it has been observed therein that prima facie case is made out u/ss. 147, 323, 379, 506 I.P.C. against the accused persons. Therefore, in the light of the aforesaid order of the learned 1st Addl. Sessions Judge, Madhubani, the complainant is directed to furnish requisites so as to issue summon against the accused persons accordingly fixing 23.9.2005 for their appearance." 4. Aggrieved by the aforesaid order, the petitioners again moved the Sessions Court in Criminal Revision No. 1474 of 2005 which was dismissed by the impugned order dated 23.4.2007. 5. The primary grievance of the petitioners is that the learned Chief Judicial Magistrate, Madhubani, in view of the order dated 19.4.2005 passed in Criminal Revision No. 779 of 2003 was under an obligation to follow the directions of the revisional court, namely, to hold further or fresh inquiry into the matter and thereafter pass necessary orders in accordance with law but instead of doing so he appears to have taken cognizance of the offence merely on the ground that the revisional court had observed that a prima facie case is made out under Sections 147, 323, 379 and 506 I.P.C. against the accused persons without applying his independent mind to the facts and the circumstances of the case which was not only unwarranted but an abuse of the process of the court. The further grievance of the petitioners is that the second revisional court without considering this aspect of the matter by the impugned order dated 23.4.2007 dismissed the Criminal Revision No. 1474 of 2005 preferred against the order dated 22.8.2005. 6. Section 398 Cr.P.C. confers power on the revisional court to order further inquiry into a case in which the complaint is summarily dismissed under Section 203 Cr.P.C. When coun orders for "further inquiry" it is not restricted to the mere taking of evidence but also includes a consideration of that evidence and the conclusion to charge or discharge the accused. In other words, the expression "further inquiry" includes the additional investigation of facts or, where no additional evidence is forthcoming, rehearing or reconsideration of the same materials. 7. In other words, the expression "further inquiry" includes the additional investigation of facts or, where no additional evidence is forthcoming, rehearing or reconsideration of the same materials. 7. In this case, the complaint was dismissed after perusing the evidence adduced by the complainant and the revisional court having perused the same formed an opinion that certain offences were made out against the accused and thereafter remanded the case back to the learned Chief Judicial Magistrate or his successor in office for re-inquiry and for passing necessary orders in accordance with law. Therefore, when the case came back the learned Magistrate was under an obligation to order for further inquiry under Section 202 Cr.P.C. and having done so to pass orders in accordance with law. There is no suggestion in the impugned order of the learned Magistrate that there was any inquiry by him and to the contrary it indicates that he has summoned the accused only on the basis of the observations of the revisional court that prima facie case under Sections 147, 323, 379 and 506 I.P.C. is made out against the accused persons and the learned second revisional court appears to have fallen in error by accepting the reasonings assigned by the learned Magistrate for summoning the accused. This, in my opinion, is not the proper application of the legislative intent and the petitioners have suffered failure of justice. 8. Due regard being had to the discussions made above, I am of the opinion that the impugned orders of the magisterial court as also the revisional courts cannot be sustained in law and are required to be quashed. Accordingly these orders are quashed and the application is allowed.