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2010 DIGILAW 1668 (PAT)

Nityanand Sah v. State Of Bihar

2010-07-28

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. Four petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of on order dated 9.8.2000 whereby the learned Sessions Judge, Darbhanga has rejected the discharge petition filed on behalf of the petitioners under Section 227 of the Code of Criminal Procedure. 2. Short fact of the case is that the opposite party No. 2 filed a complaint vide Complaint Case No. 189 of 1994, which was transferred to the police for its registration and investigation under Section 156(3) of the Code of Criminal Procedure. However, after investigation, police submitted final form recommending as it was a case of mistake of fact. After submission of final form, the learned Magistrate, differing with the police report on the basis of materials available in the case diary, took cognizance of offence under Sections 302, 201, 436/34 of the Indian Penal Code. When the case reached to the stage of charge, petition for discharge was filed under Section 227 of the Code of Criminal Procedure on behalf of the petitioners and the learned Sessions Judge, by its order dated 9.8.2000, rejected the discharge petition. 3. Aggrieved with the rejection of discharge petition, the petitioners approached this Court by filing the present petition. This case was admitted on 19.2.2002. While admitting, this Court directed that pending hearing of this application, interim order dated 1.11.2001, shall remain operative. 4. Shri Ganesh Prasad Singh, learned counsel appearing on behalf of the petitioners, has raised several points for challenging the order of rejection of discharge petition. It was submitted that initially after the death of the brother of the informant on the basis of his written report as UD Case (Un- natural Death Case) was registered. Subsequently, the opposite party No. 2 filed a complaint case vide Complaint Case No. 922 of 1992 artd the complainant, after filing complaint petition, did not take any step either for his examination on SA or for examining any witnesses and finally the complaint petition was dismissed on 6.2.1993. A typed copy of order of rejection of Complaint Case No. 922 of 1992 has been brought on record by the petitioners vide Annexure-2 to the petition. A typed copy of order of rejection of Complaint Case No. 922 of 1992 has been brought on record by the petitioners vide Annexure-2 to the petition. It was submitted that even though the complaint petition was rejected by the learned Magistrate due to non-examination of the complainant or any of the witnesses, the complainant, to the reasons best known to him, again filed a complaint in the year 1994, which was registered as Complaint Case No. 189 of 1994, which was transferred to the police under Section 156(3) of the Code of Criminal Procedure for its registration and investigation and thereafter, an FIR vide Kamtaul PS Case No. 17 of 1994 was registered on 15.3.1999. The FIR was registered under. Sections 302, 201, 436/34 of the Indian Penal Code against the petitioners. Learned counsel for the petitioners further submits that since the case was false, the police submitted final form on 31.12.1995 as mistake of fact. However, the learned Magistrate, differing with the police report, passed the order of cognizance in a mechanical manner and subsequently, at the stage of charge also, the learned Sessions Judge has rejected the discharge petition without application of its mind. 5. Smt. Indu Bala Pandey, learned Additional Public Prosecutor, appearing on behalf of the State, has opposed the prayer of the petitioners. It was submitted that while taking cognizance of the offence, the learned Magistrate had not committed any mistake rather the learned Magistrate was well competent to take cognizance even differing with the recommendation of the police on the basis of materials available in the case diary. It was submitted that at the stage of charge, only requirement is to see as to whether prima facie case is made out or not. It was argued that since the learned Sessions Judge was satisfied with the prima facie case, he has rightly rejected the discharge petition and, accordingly, the petition is liable to be rejected. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. At the time of hearing, the learned counsel for the petitioners had produced a photo copy of certified copy of the order dated 24.9.1997, whereby the learned Chief Judicial Magistrate had taken cognizance of the offence. Keep it on record. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. At the time of hearing, the learned counsel for the petitioners had produced a photo copy of certified copy of the order dated 24.9.1997, whereby the learned Chief Judicial Magistrate had taken cognizance of the offence. Keep it on record. On perusal of the order of cognizance, the Court is satisfied that there were at least materials to proceed against the petitioners and, accordingly, the learned Chief Judicial Magistrate has rightly passed the order of cognizance and in similar manner, the learned Sessions Judge has committed no error in rejecting the discharge petition. 7. Accordingly, I do not find any defect in the order dated 9.8.2000 passed by the learned Sessions Judge, Darbhanga in Sessions Trial No. 242 of 1998 and the petition stands rejected. 8. In view of rejection of the present petition, interim order of stay stands automatically vacated. 9. Let a copy of this order be sent to the Court below forthwith.