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2010 DIGILAW 1621 (PAT)

Surendra Yadav v. State Of Bihar

2010-07-22

DHARNIDHAR JHA

body2010
JUDGEMENT 1. Heard learned counsel for the parties. 2. The petition seeks quashing of the order dated 22.12.2008 by which the learned Judicial Magistrate 1st Class, Barh, Patna directed the framing of charges under Sections 363, 365 and 494 of the Indian Penal Code against the petitioners in Barh P.S. Case no. 307 of 2007 (G.R. No. 1024 of 2007). 3. The allegation contained in the FIR was that the petitioners had taken and enticed away the wife of the informant, who was aged 36 years and was mother of his two children. It was further stated that the purpose for taking and enticing away the lady, inter alia, was also to sell the land which was standing in the name of the lady on account of being given to her by her parents out of love and affection. 4. It appears that the lady appeared in the court and her statement was recorded under Section 164 of the Cr. P.C. and she stated that the complainant/informant used to ill treat and torture her so much so that she was beaten up very often. On one such occasion, she was not only beaten up but was also driven out of her house by her husband and out of frustration, she came to the railway station, caught a train and went to Mathura where she was engaged in selling vegetables. She had gone to Deoghar from Mathura and she came to learn from a lady that a man had been remanded to custody on the complain of her husband who was alleging that the man had taken or enticed away the lady, i.e., Indu Devi and as such, she came to court where the police took her in custody. In her statement she stated that none had abducted or kidnapped her and she had gone to Mathura out of her own free will and was desirous of going back to that place as she had become habituated of living harsher life. She stated that she does not have any relationship with petitioner Surendra Yadav nor there had been any fling with time. 5. She stated that she does not have any relationship with petitioner Surendra Yadav nor there had been any fling with time. 5. The learned magistrate, who passed the order on 22.2.2008 directing faming of charges, has noted that cognizance order was passed on 27.2.2008 by the learned A.C.J.M., Barh against the petitioners and that order was not assailed before any higher court in any appropriate proceeding and, as such, the petition filed on 25.6.2008 by the defence appeared of no merit. 6. It is too well known to be stated that the provision of Sections 239 and 240 of the Code of Criminal Procedure are complementary to each other and the whole ambit and scope of the jurisdiction of a court of a magistrate who carries on a trial under Chapter XIX of the Code, has to be considered only after considering the two provisions. If one considers the provision of Section 239 of the Code, one could find that for passing an order under that particular provision, the documents which are to be considered are the police report and documents which could be sent with it to the court. Of course, the magistrate who has to pass an order under Section 239 of the Code has to hear the accused persons and thereafter has to find out, as may appear from the language of Section 240 of the Code, that there was ground for presuming that the accused had committed an offence triable under Chapter XIX of the Code which offence the magistrate was competent to try and which, in his opinion, he could adequately punish. These are the considerations and these are the findings to be recorded by a magistrate while he was proceeding under Sections 239 and 240 of the Code. 7. As may appear from the reading of the two provisions, there is no mention in those provisions that any order passed by any court of coordinate jurisdiction or of a higher jurisdiction taking cognizance or refusing to discharge an accused could be an impediment into passing an order under the two sections. The order has to be passed purely considering the police report and documents submitted as defined under Section 173(2) of the Code of Criminal Procedure. The order has to be passed purely considering the police report and documents submitted as defined under Section 173(2) of the Code of Criminal Procedure. As such, the record of the learned magistrate that the learned A C.J.M., Barh had passed the order of cognizance on a particular date which was never challenged before any superior court, appears completely a misconception of law and a ground which could not be legally sustained. 8. It hardly requires to be pointed out that at the stage of hearing a petition of present nature which seeks the quashing of an order framing charges if the court comes to a conclusion that no offence is made out, then it can quash the proceeding. I have brought on record the statement made by Indu Devi, the lady victim of the occurrence and on consideration of that particular statement, it could never be said that any offence for which the learned magistrate directed the charges to be framed, could be said to be constituted. She has very categorically stated that she did never have any relationship with petitioner Surendra Yadav nor she had, on that particular date, the relationship existing. She has very categorically stated that she was never taken or enticed away by any one. 9. If this could be the factual statement which could be obtained from the statement of the lady, then it could be an abuse of the process of the court to allow the proceedings to continue there. 10. In the result, the petition is allowed. The proceeding is quashed.