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2011 DIGILAW 1867 (PAT)

Ram Naresh Sharma v. Keshaw Prasad Singh

2011-09-02

AMARESH KUMAR LAL

body2011
JUDGEMENT Amaresh Kumar Lal, J. 1. The accused-petitioner has preferred this revision application against the order dated 10th January 2002 passed by the learned 5th Additional Sessions Judge, Bhojpur at Arrah in Cr. Revision No. 140 of 1996 by which the order dated 9.7.1996 passed by the learned Judicial Magistrate, 1st Class, Bhojpur, Arrah dismissing the Complaint Case No. 552 C of 1995, has been set aside. 2. The prosecution case, in brief, is that the complainant is paid manager of Co-operative Department, Charpokhari, Arrah and the accused- petitioner is the Manager of the said department. On demand of the petitioner, the complainant opposite party handed over the departmental register, cash book and proceeding books to him. The accused assured him that after enquiry the same would be returned to the complainant but on demand the same was not returned to him by the petitioner and on 10.9.1995 the complainant opposite party went to the residence of the accused petitioner and demanded the same which was refused by the petitioner and he assaulted and abused the opposite party, as a result thereof the complainant sustained injuries. 3. The complaint petition was filed in the Court of learned Chief Judicial Magistrate for the offence punishable under Sections 323,406, 420, 500 and 504 I.P.C. The complaint petition was made over to the learned Judicial Magistrate under Section 192 Cr.P.C. by the learned Chief Judicial Magistrate. After holding enquiry under Sections 202 and 203 Cr.P.C, the learned Judicial Magistrate dismissed the complaint petition vide order dated 9.7.1996. Thereafter, the complainant preferred Cr. Revision No. 140 of 1996 in the Court of learned Sessions Judge which was later on heard by learned 5th Additional Sessions Judge and the revision application has been allowed setting aside the order dated 9.7.1996 and the learned Judicial Magistrate was directed under Section 398 Cr.P.C. to hold further enquiry into the matter and then to pass the necessary order. 4. It has been stated in the revision application that the learned Judicial Magistrate has not committed any illegality in dismissing the complaint petition after examining the statement of the witnesses and the statement of the complainant on oath and enquiry report submitted by the Circle Officer. 5. 4. It has been stated in the revision application that the learned Judicial Magistrate has not committed any illegality in dismissing the complaint petition after examining the statement of the witnesses and the statement of the complainant on oath and enquiry report submitted by the Circle Officer. 5. It appears that the learned 5th Additional Sessions Judge has found that the learned Judicial Magistrate has called for a report from the local Circle Officer while conducting an enquiry under Section 202 Cr.P.C. and has also relied upon the report made by the Circle Officer while considering the evidence of the complainant on solemn affirmation and the evidence of other witnesses. It has also been held that learned Magistrate should not have called for a report from other agency and at the same time he has also held the enquiry under Section 202 Cr.P.C.. Learned Magistrate is required either to enquire into the case himself or direct an investigation to be made by the police officer or by any such other persons as he thinks fit for the purpose of deciding as to whether or not there is sufficient ground for proceeding against the accused, but the learned Magistrate has taken both the course which is beyond his jurisdiction, as such it has been held by the learned Additional Sessions Judge that the learned Magistrate has also made enquiry himself as well as by the Circle Officer and also considered enquiry report as well as the material on the record during enquiry made by himself and secondly it has been held that it appears that learned Magistrate has held a mini trial which is not required under Section 202 Cr.P.C. The learned Magistrate is required only to consider as to whether there is sufficient ground for proceeding against the accused, he has not to evaluate the evidence as to whether it would lead to conviction of the accused or not. 6. Considering the facts and circumstances, I do not find any ground to interfere with the impugned order. This application is dismissed.