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2010 DIGILAW 1190 (PAT)

Basudeo Singh Byas Singh v. State Of Bihar

2010-05-10

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. Three petitioners, while invoking inherent jurisdiction of this Court under Sec.482 of the Code of Criminal Procedure , have prayed for quashing of the order dated 13.8.1999 passed by the learned 7th Addl. Sessions Judge, Rohtas in Nasriganj ( Rajpur) P. S. Case No.36 of 1996, S. Tr. No.220 of 1999. By the said order, the learned trial Judge has rejected the petition filed on behalf of the petitioners under Sec.228 (1) of the Code of Criminal Procedure. 2. Initially on the basis of fardbeyan of Raj Kumari Devi, an F. I. R. was registered for offences under Sections 376 and other allied Sections of the Indian Penal Code. However, after investigation , police submitted chargesheet under Sections 341, 323/34 of the Indian Penal Code. In this case after submission of the chargesheet , the learned Magistrate differing with the police report took cognizance of the offence under Sec.376 and other allied Sections of the Indian Penal Code and thereafter case was committed to the court of Sessions. When the case reached to the stage of charge, a petition under Sec.228 (1) of the Code of Criminal was filed on behalf of the petitioners with a prayer that on the basis of materials available on the record, no offence either under Sec.376 or 379 of the Indian Penal Code is made out and a prayer was made to remit back the case to the court of Magistrate for trial since it was not a case triable by the court of Sessions. The learned Addl. Sessions Judge by its impugned order dated 13.8.1999 assigning a detailed reason and after examining the materials has rejected the petition filed under Sec.228 (1) of the Code of Criminal Procedure. 3. Aggrieved by the order dated 13.8.1999 the petitioners approached this Court by filing the present petition. Surprisingly, in the petition except the impugned order nothing was brought on the record. Neither order of cognizance nor F. I. R. was brought on the record. However, by order dated 28.2.2000 lower court record was called for, which has been received in the present case. Subsequently by order dated 19.7.2000, this application was admitted for hearing and while admitting the case for hearing, this Court had directed that during the pendency of this case, further proceeding in the court below shall remain stayed. 4. However, by order dated 28.2.2000 lower court record was called for, which has been received in the present case. Subsequently by order dated 19.7.2000, this application was admitted for hearing and while admitting the case for hearing, this Court had directed that during the pendency of this case, further proceeding in the court below shall remain stayed. 4. Sri Ashok Kumar Dubey, learned counsel appearing on behalf of the petitioners, while challenging the impugned order submits that the petitioners and the informant were Gotias and there were number of cases pending in between the parties. He submits that earlier threatening was given to implicate the petitioners in false case. Accordingly, the present case was filed by the informant. He further submits that during investigation, police has recorded statements of number of witnesses, who have not supported the case of the informant so far offence under Sec.376 or 379 of the Indian Penal Code is concerned. Accordingly, he has prayed for quashing of the order dated 13.8.1999. 5. Sri Brij Kishore Prasad, learned counsel appearing on behalf of the State, on the basis of lower court record, submits that after rejection of petition filed by the petitioner under Sec.228 (1) of the Code of Criminal Procedure in the present case , charge has already been framed by order dated 18.1.2000. He submits that statement of victim was recorded under Sec.164 of the Code of Criminal Procedure and in her statement she has categorically described regarding the alleged occurrence of rape and threat. Accordingly he submits that while rejecting the petition filed by the petitioners by the impugned order, the learned Addl. Sessions Judge has committed no error. He further submits that since the charge has already been framed, there is no point to hear the present petition. 6. Besides hearing learned counsel for the parties, I have also examined the impugned order. It is really surprising that while filing the present petition the petitioners had not cared to bring on record either copy of the F. I. R. or the copy of the order of cognizance or commitment order. However, after going through the impugned order I am of the view that the learned Addl. Sessions Judge has rightly rejected the petition filed by the petitioners. However, after going through the impugned order I am of the view that the learned Addl. Sessions Judge has rightly rejected the petition filed by the petitioners. Moreover, in the present case, after rejection of the petition filed under Sec.228 (1) of the Code of Criminal Procedure, charge has already been framed, meaning thereby that the trial has commenced. However, subsequent to framing of the charges, the stay order was granted by this Court. It appears that the trial in the case has been kept pending for such a long time. 7. Considering facts and circumstances of the case, I do not find any merit in the present case and the petition stands rejected. 8. In view of rejection of the present petition, the interim order of stay dated 19.7.2000 stands automatically vacated. 9. Keeping in view the seriousness of the allegation as well as pendency of the present case for such a long time, it is desirable to direct the court below to expedite the trial and conclude the same expeditiously. 10. With the above observation and direction the petition stands rejected. 11. In this case earlier lower court record was called for and received, which is lying on the record of the present case. Since the petition stands rejected, it is desirable to direct the office to remit back the lower court record along with a copy of this order to the court below.