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2010 DIGILAW 2293 (PAT)

Devendra Kumar v. State Of Bihar

2010-10-05

RAKESH KUMAR

body2010
JUDGEMENT 1. Heard learned counsel for the petitioners, Shri Shivendra Kishore. learned counsel appearing on behalf of opposite party No. 2 and Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State. 2. Three petitioners, who were at the relevant time official of the Mines and Mineral Development Corporation, are before this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 13.8.2007 passed in Cr. Revision No. 550 of 2004 by the Additional Sessions Judge XI, Patna, whereby the revision preferred against the order dated 7.7.2004 passed by the learned Judicial Magistrate, Ist Class, Danapur in Maner P.S. Case No. 35 of 1999 (G.R. Case No. 185 of 1999) was rejected. By order dated 7.7.2004, the learned Magistrate, while exercising power under Section 311 of the Code of Criminal Procedure, has directed for summoning all the charge-heeted witnesses. 3. Short fact of the case is that on the basis of fardbeyan of opposite party No. 2, an F.I.R. vide Maner P.S. Case No. 35 of 1999 was registered on 17.2.1999 for the offence under Sections 341, 323, 324, 307 and 379/34 of the Indian Penal Code. In the said case, alleged occurrence had taken place on 16.2.1999. After investigation, police submitted charge-sheet on 30.3.1999 under Sections 341, 323 and 325/34 of the Indian Penal Code. After submission of charge-sheet, cognizance order was passed and on 6.11.2000, charges were framed under Sections 341, 323 and 325/34 of the Indian Penal Code against three petitioners. After framing of the charges, number of dates were fixed for examination of witnesses. However, the prosecution preferred not to examine even single witness and finally on 27.3.2004, the learned Magistrate closed the prosecution evidence by assigning a detailed reason and case was fixed for recording statement of accused persons under Section 313 of the Code of Criminal Procedure and on 14.5.2004, statement of accused persons was recorded under Section 313 of the Code of Criminal Procedure. Thereafter, the case was fixed for argument. Subsequently, by the impugned order i.e. order dated 7.7.2004, the learned Magistrate under Section 311 of the Code of Criminal Procedure directed for summoning all the charge-sheeted witnesses. 4. Aggrieved with the order of summoning witnesses and re-opening the case, the petitioners preferred a revision petition vide Cr. Thereafter, the case was fixed for argument. Subsequently, by the impugned order i.e. order dated 7.7.2004, the learned Magistrate under Section 311 of the Code of Criminal Procedure directed for summoning all the charge-sheeted witnesses. 4. Aggrieved with the order of summoning witnesses and re-opening the case, the petitioners preferred a revision petition vide Cr. Revision No. 550 of 2004 and finally, by order dated 13th August, 2007, the learned Additional Sessions Judge XI rejected the revision petition. 5. After rejection of revision petition i.e. Cr. Revision No. 550 of 2004, petitioners approached this Court by filing the present petition. On 11.2.2009, while issuing notice to opposite party No. 2, further proceeding in G.R. Case No. 185 of 1999 arising out of Maner P.S. Case No. 35 of 1999 pending in the Court of Judicial Magistrate, Ist Class, Danapur was directed to remain stayed. Subsequently, the order of stay was vacated on 31.8.2010. 6. Learned counsel for the petitioners, while challenging the order of summoning the witnesses as well as order of revisional Court, has argued that the learned Magistrate, while passing the impugned order, has virtually directed for de novo trial. It was submitted that once by a reasoned order, the evidence in the case was closed by its order dated 27.3.2004, by way of passing the impugned order, the learned Magistrate has virtually reviewed its earlier order in the garb of exercising power under Section 311 of the Code of Criminal Procedure. It has further been submitted that after framing of the charge, on 12.12.2001, the witness was present in the Court for evidence, but since the Presiding Officer was on leave, the evidence could not be recorded. It was submitted that altogether 32 dates were given to the prosecution to adduce evidence. After framing of the charges, the matter remained pending from 6.11.2000 up to 27.3.2004 for production of witnesses, but the prosecution completely failed to produce and examine any witness. Learned counsel for the petitioners, while referring to the entire order sheets, has argued that time without number, the order-sheets were shown to the learned Additional Public Prosecutor, who was conducting the trial. Even bailable warrant of arrest was issued against prosecution witnesses, but none of the witnesses appeared for their evidence. Learned counsel for the petitioners has tried to explain none appearance of the witnesses. Even bailable warrant of arrest was issued against prosecution witnesses, but none of the witnesses appeared for their evidence. Learned counsel for the petitioners has tried to explain none appearance of the witnesses. It has been submitted that prior to institution of the present case Le. Maner P.S. Case No. 35 of 1999, an F.I.R. was registered against the licensee with whom the informant of the present case was associated and other accused persons vide Maner P.S. Case No. 33 of 1999 for an occurrence, which had taken place on 15.2.1999. The said case was registered for the offence under Sections 147, 341, 323, 352 and 504 of the Indian Penal Code. It has been submitted that after registering the case, the police investigated the same and thereafter, charge sheet was submitted against accused persons including the informant of the present case. It has been argued that the present case Le. Maner P.S. Case No.35 of 1999 was a counter blast to the Maner P.S. Case No. 33 of 1999. It has further been argued that in Maner P.S. Case No. 33 of 1999, after submission of charge-sheet, non-bailable warrant of arrest was issued against the informant of the present case and other accused persons. It appears that they were avoiding their appearance in Maner P.S. Case No. 33 of 1999 and intentionally they did not appear for their deposition in the present case and as such it was not reasonable latches on the part of the witnesses of the present case, but it was their deliberate action. It has further been submitted that for an occurrence, which had taken place in the year 1999, the petitioners had repeatedly appeared before the trial Court. However, the prosecution failed to produce any of the witness for about four years and thereafter, the learned Magistrate, by assigning a detailed reason, has closed the prosecution evidence and at the stage of argument, the successor Magistrate has passed the impugned order. In similar manner, it has been argued that the Revisional Court, in a mechanical manner, has rejected the revision petition. Accordingly, it has been prayed to quash both the orders i.e. order dated 7.7.2004 passed by the learned Magistrate and order dated 13.8.2007 passed in Cr. Revision No. 550 of 2004 by Additional Sessions Judge XI, Patna. 7. In similar manner, it has been argued that the Revisional Court, in a mechanical manner, has rejected the revision petition. Accordingly, it has been prayed to quash both the orders i.e. order dated 7.7.2004 passed by the learned Magistrate and order dated 13.8.2007 passed in Cr. Revision No. 550 of 2004 by Additional Sessions Judge XI, Patna. 7. Shri Shivendra Kishore, learned counsel appearing on behalf of opposite party No. 2, has vehemently opposed the prayer of the petitioners. Learned counsel for the opposite party No. 2 has raised preliminary objection on the point of maintainability of the present case. It has been submitted that once revision preferred by petitioners against the order of the Magistrate was rejected, the present petition, which has been filed in the garb of provision under Section 482 of the Code of Criminal Procedure, amounts to second revision, which is barred under Section 397(3) of the Code of Criminal Procedure. Learned counsel for the opposite party No. 2, in support of this stand, has referred to a judgment of Honble Supreme Court reported in 1995(5) SCC 751 (Deepti @ Arati Rai V/s. Akhil Rai & Ors.). It has been submitted that once revision petition was rejected by the learned Additional Sessions Judge, the petitioners were not entitled to invoke inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. Learned counsel for the opposite party No. 2 has further submitted that before closure of the prosecution case, the learned Magistrate had not even perused the record, which suggests that on record even there were no service report. Neither on record, there were service report to show that witnesses were informed nor the prosecution has taken step for issuance of non-bailable warrant of arrest. Similarly, no step was taken for directing the police to execute warrant of arrest. In sum and substance, it has been submitted that no steps/action was taken by the prosecution or the learned Magistrate for ensuring presence of the witnesses and as such by way of passing the impugned order i.e. order dated 7.7.2004, the learned Magistrate has rightly exercise power under Section 311 of the Code of Criminal Procedure.. In sum and substance, it has been submitted that no steps/action was taken by the prosecution or the learned Magistrate for ensuring presence of the witnesses and as such by way of passing the impugned order i.e. order dated 7.7.2004, the learned Magistrate has rightly exercise power under Section 311 of the Code of Criminal Procedure.. In respect of exercising power under Section 311 of the Code of Criminal Procedure, Shri Shivendra Kishore, learned counsel for the opposite party No. 2, has argued that this power can be exercised at any stage of the trial. In support of his argument, learned counsel has referred to a judgment of this Court reported in 2006(3) PLJR 195 (Md. Shams Anwar @ Guddu V/s. State of Bihar & Anr.). Learned counsel for the opposite party No. 2 has specifically referred paragraph-10 of the judgment, which is as follows : "10. The Supreme Court more recently in a judgment reported in 2006(3) SCC 374 : 2006(3) PLJR (SC) 83 (Zahira Habibullah Shekh (5) & Anr. V/s. State of Gujarat & Ors.) while explaining the purpose and scope of Section 311 of the Cr PC at paragraphs 27 and 28 of the judgment has held that the underlying purpose of Section 311, Cr PC was to prevent the failure of justice by permitting valuable evidence to be brought on record. Sometimes the order of the Court may result in what is thought to be filling of loopholes. That was purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge." 8. On the aforesaid grounds, it has been submitted that the learned Magistrate as well as the learned Additional Sessions Judge has passed valid and legal order and this Court may not interfere with either of the orders. 9. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State, has supported the stand taken by Shri Shivendra Kishore, learned counsel appearing on behalf of opposite party No. 2. 10. Besides hearing learned counsel for the parties, I have also perused the materials available on record. 9. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State, has supported the stand taken by Shri Shivendra Kishore, learned counsel appearing on behalf of opposite party No. 2. 10. Besides hearing learned counsel for the parties, I have also perused the materials available on record. After going through the order-sheet, it is evident that in the present case, charges were framed on 6.11.2000 and thereafter, at least on one occasion, witness was present, but due to the reason, which were beyond the control of either of the party, he could not be examined. This shows that the prosecution witnesses were aware regarding the commencement of trial. Right from 6.11.2002, 27.3.2004 Le. the date of closure of prosecution evidence, the prosecution did not take any step for examining any witnesses and as such by assigning a detailed reason the learned Magistrate, by its order dated 27.3.2004, closed the prosecution evidence. It is not in dispute that order dated 27.3.2004 was never questioned or challenged either before the Sessions Court or before this Court. Meaning thereby that the order dated 27.3.2004 had attained its finality. In the case, thereafter, the statement of accused persons were also recorded on 14.5.2004 and case was fixed for argument. It is true that under Section 311 of the Code of Criminal Procedure, a Court has got ample power to summon any witnesses, but at the same time, while exercising power under Section 311 of the Code of Criminal Procedure, a trial Court is not entitled to commence de novo trial. In the present case, by the impugned order, the learned Magistrate has virtually directed for summoning all the witnesses, who were cited in the charge-sheet. Meaning thereby that the learned Magistrate had virtually passed an order for initiating or commencing trial as if in the case after framing of the charge, the case was fixed for evidence only. Moreover, once the order for closure of the evidence was passed by a reasoned order and same was never challenged, the said order had attained its finality. In the garb of passing an order under Section 311 of the Code of Criminal Procedure, the learned Magistrate was not entitled to virtually review its own order. Moreover, once the order for closure of the evidence was passed by a reasoned order and same was never challenged, the said order had attained its finality. In the garb of passing an order under Section 311 of the Code of Criminal Procedure, the learned Magistrate was not entitled to virtually review its own order. Under Section 362 of the Code of Criminal Procedure, there is complete bar for review or recall of an order, if the same has been signed by the concerned Court. This Court is of the opinion that the impugned order was not passed for examining certain witnesses, but by this order, the learned Magistrate has started de novo trial, which is not permissible. The fact remains that the petitioners were Government officials. It is also not in dispute that prior to filing of the present case i.e. Maner P.S. Case No. 35 of 1999, a case was already instituted vide Maner P.S. Case No. 33 of 1999 in which date of occurrence was said to be 15.2.1999. 11. So far as Deepti @ Arati Rais case (Supra) is concerned, the Court is of the opinion that it is true that second revision is not permissible in the eye of law, but if the Court is satisfied that the impugned order was wholly illegal or without jurisdiction, then in that event, the power under Section 482 of the Code of Criminal Procedure can be exercised with a view to prevent abuse of the process of the law as well as for the ends of justice. 12. In view of the facts and circumstances of the present case, the Court is of the opinion that with a view to prevent abuse of process of the Court as well as for the ends of justice, it is necessary to interfere with both the orders. 13. Accordingly, the order dated 7.7.2004 passed by the learned Magistrate as well as order dated 13.8.2007 passed in Cr. Revision No. 550 of 2004 are hereby set aside and petition stands allowed.