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2011 DIGILAW 1616 (PAT)

Kamlesh Kumar Singh v. State Of Bihar

2011-08-02

SHEEMA ALI KHAN

body2011
ORDER Heard Counsel for the petitioners and the A.P.P. appearing on behalf of the State. 2. The petitioners are aggrieved by the order dated 29.07.2008 passed in C.R. Case No. 1227 of 200, arising out of Samastipur (Muffasil) Police Station Case No. 130 of 2000 by which the Chief Judicial Magistrate, Samastipur has taken cognizance for the offences alleged to have been committed under Sections 147, 148, 149, 323, 307, 302 & 120B of the Indian Penal Code. 3. The petitioners were accused in a case under Section 302 and other allied sections of the Indian Penal Code. Charge sheet was submitted against one of the co-accused Jai Shankar Jha and cognizance was also taken against him. A supplementary charge was submitted which indicated that the petitioners were not found to be involved in the alleged occurrence. The final form was submitted in the second round, was accepted by the Chief Judicial Magistrate, Samastipur on 21.08.2003. The order does not indicate whether the informant was heard before the final form was submitted. In any event, the matter came to be challenged before the High Court. The High Court held vide order dated 03.08.2004 that “the Magistrate should proceed with the protest petition treating the same to be complaint and pass orders in accordance with law”. The informant thereafter moved before the Supreme Court against the order of the High Court. The Supreme Court passed the following orders. “We direct that the protest petition be considered by the Magistrate and appropriate orders be passed. The petitioner would be at liberty to take further cause of action depending on the order that may be passed in the protest petition.” 4. All these orders came before the Chief Judicial Magistrate, Samastipur who has disposed of the matter on 29.07.2008 without understanding the meaning and import of the orders passed by the High Court and the Supreme Court. 5. This Court would normally not quash the order impugned without noticing the informant, however, since there is an order of the High Court and the Supreme Court and the order impugned is in the teeth of both orders, this Court finds that it would only delay the disposal of the case, if this Court issue notice to the informant. 5. This Court would normally not quash the order impugned without noticing the informant, however, since there is an order of the High Court and the Supreme Court and the order impugned is in the teeth of both orders, this Court finds that it would only delay the disposal of the case, if this Court issue notice to the informant. Also, the informant of this case would get an opportunity to appear before the Chief Judicial Magistrate, as will be indicated in the later part of this order. 6. The Chief Judicial Magistrate, Samastipur while purportedly following the orders of the Supreme Court has not called upon the informant and examine him on S.A. as would be the proceedings in cases when protest –cum- complaint petition are filed, rather he had proceeded to examine the merits of the case on consideration of the materials in the case diary. In a very detailed order, he has indicated that there are sufficient materials in the case diary, which would indicate that the petitioners were involved in the alleged occurrence. 7. There are two questions involved, firstly the obvious one, which is implementation of the order and directions of the Supreme Court. It goes without saying that the orders of the Apex Court have to be implemented both, in letter and spirit. The second part of the argument is that once the Chief Judicial Magistrate has accepted the final form in this case, he could not have reviewed his earlier order by looking into the materials in the case diary. 8. It has been held by the Supreme Court in the case of Adalat Prasad vs. Rooplal Jindal and Others [ (2004) 7 SCC 338 ] that even for the purpose of correcting an erroneous order, there is no provision under the scheme of the Code of Criminal Procedure to review the earlier order passed by the Criminal Court. The Apex Court has thereby set aside the order passed by the Supreme Court in an earlier case K. M. Mathew vs. State of Kerala [ (1992) 1 SCC 217 ]. 9. In view of the aforesaid facts and position of law, the order dated 29.07.2008 is quashed. The Apex Court has thereby set aside the order passed by the Supreme Court in an earlier case K. M. Mathew vs. State of Kerala [ (1992) 1 SCC 217 ]. 9. In view of the aforesaid facts and position of law, the order dated 29.07.2008 is quashed. This Court directs the Chief Judicial Magistrate, Samastipur to notice the informant and examine him on S.A. and also conduct an enquiry and examine other witnesses on his behalf, as directed by the earlier orders of this Court and the Supreme Court, which have been quoted in the present order. 10. This application is allowed to the extent indicated aforesaid.