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2010 DIGILAW 498 (PAT)

Sayed Raza Abbas v. State Of Bihar

2010-03-29

RAKESH KUMAR

body2010
JUDGEMENT RAKESH KUMAR, J. 1. Despite repeated call, none appeared on behalf of the petitioner. 2. In this case, while issuing notice to opposite party no.2 vide Order dated 22.12.1998, this Court also directed that in the meanwhile, operation of the order dated 21.9.1998 passed by Sri Narendra Kumar Srivastava, Vth Additional Sessions Judge, Siwan in Cr. Revision No.289 of 1995/42 of 1997 shall remain stayed. Despite valid service of notice, none appeared on behalf of the opposite party no.2 and thereafter, by order dated 23.4.1999, the petition was admitted for hearing and at the stage of hearing also, notice was ordered to be issued to opposite party no.2. Even at the time of hearing, the opposite party no.2 has not appeared. It was further directed that till further order is passed, the interim order passed on 22.12.1998 shall continue. A stay order is still continuing. 3. Four petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of order dated 21.9.1998 passed by 5th Additional Sessions Judge, Siwan in Cr. Revision No.289 of 1995/42 of 1997. By the said order, the learned Additional Sessions Judge had set aside the order dated 17.5.1995 whereby complaint petition was dismissed by the Judicial Magistrate. While setting aside the order dated 17.5.1995, the learned Additional Sessions Judge ordered to remit back the case for summoning the accused/petitioner and also directed for holding and concluding trial expeditiously. 4. The short facts of the case is that the opposite party no.2 has filed a complaint vide Complaint Case No.702 of 1993 in the court of Chief Judicial Magistrate, Siwan disclosing therein that the opposite party no.2 had earlier filed a complaint case on 17.11.1992 vide Complaint Case No.1025 of 1992 corresponding to Trial No. 10631 of 1992 for the offences under Sections 147, 148, 379, 382 of the Indian Penal Code against the present petitioner. In the said complaint, the learned Magistrate, after enquiry, had taken cognizance and aggrieved with the order of cognizance, this petitioner filed a Cr. Revision vide Cr. Revision No.318 of 1992. It was alleged by the opposite party no.2 in the present complaint i.e. Complaint Case No.702 of 1993 that before the revisional court, the petitioner filed a forged "Sada Patta" granted by Syed Ali Mehdi Mahroom and Syed Ali Akbar in respect of a pond. Revision vide Cr. Revision No.318 of 1992. It was alleged by the opposite party no.2 in the present complaint i.e. Complaint Case No.702 of 1993 that before the revisional court, the petitioner filed a forged "Sada Patta" granted by Syed Ali Mehdi Mahroom and Syed Ali Akbar in respect of a pond. Accordingly, in the present complaint, the complainant had alleged that petitioner had committed offences under Sections 456, 467, 471 land 420 of the Indian Penal Code. In the complaint case filed on behalf of the complainant, he was examined on S.A. and thereafter, few witnesses were also examined in support of the complaint. However, the learned Judicial Magistrate, after conducting enquiry under Section 202 of the Cr.P.C. came to conclusion that the complaint was prima facie in the nature of civil dispute and, accordingly, he rejected the complaint case by its order dated 17.5.1995. 5. Aggrieved with the order of rejection of complaint petition i.e. order dated 17.5.1995 passed by Sri A.K. Singh, Judicial Magistrate, Siwan, the opposite party no.2 preferred a revision vide Cr. Revision No.289 of 1995/42 of 1997 in the court of Sessions Judge, Siwan. It has been mentioned in the present quashing petition that even after expiry of period of limitation, the revision petition was entertained by the court below without condoning the delay. Subsequently, by the judgment and order dated 21.9.1998, the Vth Additional Sessions Judge, Siwan allowed the Cr. Revision No.289 of 1995/42 of 1997. Of course, along with the main petition, the petitioner had not produced the certified copy of the order, but from the record it appears that certified copy of the order dated 21.9.1998 was produced and it is kept on record. Perusal of the revisional order makes it clear that the learned Additional Sessions Judge, while allowing the revision petition, directed the Magistrate to summon the accused and directed for expeditious trial. Perusal of the revisional order makes it clear that the learned Additional Sessions Judge, while allowing the revision petition, directed the Magistrate to summon the accused and directed for expeditious trial. It would be appropriate to quote the operative portion of the order passed by the learned Sessions Judge, Siwan, which is as follows: " In view of the aforesaid discussions impugned order dated 17-5-95 passed in Complaint Case No.702/93 styled as Saiyad Jahoor Imam V/s. Saiyad Raja Abbas is hereby set-aside and the learned court below is directed to summons the accused at once and further directed that the case may be tried expeditiously; because the complaint petitioin is of year, 1993 and we are traveling in the end of 1998 and accordingly this criminal revision petition stands allowed on contest." 6. From the above order, it is clear that the learned Sessions Judge on the revision petition filed by the petitioner had virtually directed the learned Magistrate to take cognizance of the offence. It is not in dispute that taking cognizance of the offence is the complete satisfaction of the concerned court and this discretion is to be exercised by the learned Magistrate on the basis of evidence/materials available on the record of the case. The learned Additional Sessions Judge, I am of the view, has grossly erred in directing the Magistrate to take virtually cognizance of the offence. Of course, the word cognizance, has not been mentioned but the learned Judge has directed to issue summons to the accused persons. The court is required to issue summon in complaint petition after applying its mind to the complaint petition. Meaning thereby that after taking cognizance of the offence, the learned Additional Sessions Judge has committed a grave error in passing such order. Since the discretion/jurisdiction to take cognizance on the complaint was lying with the Magistrate, for such discretion/jurisdiction, the learned Additional Sessions Judge was not required to pass such order. So far as entertaining a criminal revision after expiry of period of limitation is concerned, it was necessary to pass an order to this effect. However, in the present case, the learned Additional Sessions Judge had exceeded its jurisdiction. 7. I am of the view that the order of revisional court is liable to be set aside only on this ground alone. Accordingly, the order dated 21.9.1998 passed in Cr. However, in the present case, the learned Additional Sessions Judge had exceeded its jurisdiction. 7. I am of the view that the order of revisional court is liable to be set aside only on this ground alone. Accordingly, the order dated 21.9.1998 passed in Cr. Revision No.289 of 1995/42 of 1997 is set aside and petition stands allowed.