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2011 DIGILAW 1915 (PAT)

Rekha Devi v. State of Bihar

2011-09-08

RAJENDRA KUMAR MISHRA

body2011
ORDER By the Court.- The petitioner has approached this Court invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure for quashing the order dated 13.2.2008 passed by the Additional Sessions Judge. Fast Track Court No. III. Saharsa. in Criminal Revision No. 202 of 2001. whereby the Additional Sessions Judge. Fast Track Court No. III. Saharsa, has dismissed the aforesaid Criminal Revision of the petitioner filed against the order dated 10.8.2001 taking cognizance of the offence against the petitioner and summoning her by the Court of the Chief Judicial Magistrate. Saharsa. in G.R. Case No. 1372 of 1995, arising out of Salkhua P.S. Case No. 122 of 1995. 2. In brief. the fact of the case is that on the basis of the fardbeyan of Sriram Bhagat Salkhua P.S. Case No. 122 of 1995 was instituted on 19.11.1995 under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act regarding the death of Kalo Devi. the mother of the informant. Sriram Bhagat against the accused, Shrawan Bhagat and Lalan Bhagat, After investigation, the police submitted the chargesheet under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act against the F.I.R. named accused showing them absconders in the Court of the Chief Judicial Magistrate, Saharsa. Thereafter, the Chief Judicial Magistrate, Saharsa. vide order dated 9.4.1997 took the cognizance of the offences under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act and ordered to issue the warrant against the accused vide order dated 10.5.1997. Thereafter, the police of Salkhua Police Station rued an application in the Court of the Chief Judicial Magistrate, Saharsa for further investigation which was allowed on 27.4.1999 and on reinvestigation. the police submitted the supplementary chargesheet showing the petitioner. Rekha Devi as accused, and discharging the accused. Lalan Bhagat and Shravan Bhagat against whom earlier chargesheet was submitted, showing them as absconder. The petitioner, Rekha Devi, filed an application dated 8.6.1999 in the Court of the Chief Judicial Magistrate, Saharsa. with a prayer to discharge her on the ground of her innocence in the case and the informant also filed an application dated 8.6.1999 before the Chief Judicial Magistrate, Saharsa with a prayer to proceed against the accused. The petitioner, Rekha Devi, filed an application dated 8.6.1999 in the Court of the Chief Judicial Magistrate, Saharsa. with a prayer to discharge her on the ground of her innocence in the case and the informant also filed an application dated 8.6.1999 before the Chief Judicial Magistrate, Saharsa with a prayer to proceed against the accused. Shravan Bhagat and Lalan Bhagat against whom the cognizance had already been taken and stated that the police in collusion with the accused had wrongly filed the supplementary chargesheet, On hearing the petition of the informant, Sriram Bhagat and the petitioner, Rekha Devi the Chief Judicial Magistrate, Saharsa vide order dated 9.6.1999 allowed the application of the informant and disposed of the application of the petitioner, after arriving at the finding that the subsequent investigation was done by the police with ulterior motive and disbelieved the supplementary chargesheet. The said order dated 9.6.1999 was challenged by the accused through Criminal Revision Petition numbered as Criminal Revision No. 385 of 1999. which was dismissed by the Court of the First Additional Sessions Judge. Saharsa on 25.6.2001, affirming the order of the Chief Judicial Magistrate, Saharsa, passed on 9.6.1999. Later on, on receiving the order dated 25.6.2001 passed in Criminal Revision No. 385 of 1999, the Chief Judicial Magistrate, Saharsa. took the cognizance of the offence vide order dated 10.8.2001 against the accused-petitioner under Sections 302 and 120- B of the Indian Penal Code and Section 27 of the Arms Act and sent the record to the file of Sri Baidyanath. Judicial Magistrate, First Class, Saharsa and ordered to issue the summons for appearance of the bailed out accused Lalan Bhagat and the petitioner, Rekha Devi. The petitioner, Rekha Devi. being aggrieved by the aforesaid order dated 10.8.2001 passed by the Chief Judicial Magistrate, Saharsa, preferred Criminal Revision No. 202 of 2001, which was dismissed by the Additional Sessions Judge. Fast Track Court No. III. Saharsa, on 13.2.2008. which has been assailed before this Court by the petitioner by filing this application. 3. Learned counsel appearing on behalf of the petitioner submits that once the Chief Judicial Magistrate, on hearing the informant and also the petitioner, on the supplementary chargesheet submitted by the police decided not to summon the petitioner for proceeding under Section 204 of the Code of Criminal Procedure on 9.6.1999 and ordered to issue non-bailable warrant against the accused. 3. Learned counsel appearing on behalf of the petitioner submits that once the Chief Judicial Magistrate, on hearing the informant and also the petitioner, on the supplementary chargesheet submitted by the police decided not to summon the petitioner for proceeding under Section 204 of the Code of Criminal Procedure on 9.6.1999 and ordered to issue non-bailable warrant against the accused. Shrawan Bhagat, then the taking of cognizance of the offence against the petitioner, Rekha Devi, and ordered to summon her vide order dated 10.8.2001, amounts to review of the earlier order dated 9.6.1999. which is not permissible in law. 4. It appears from the order dated 9.6.1999. Annexure-'7' to this application that on that date one accused. Lalan Bhagat, was produced from jail custody. The Chief Judicial Magistrate, Saharsa. on heating the learned counsel for the informant, learned counsel for the petitioner and the Additional P.P. on the supplementary chargesheet submitted by the police against the petitioner, Rekha Devi showing the accused Lalan Bhagat and Shrawan Bhagat against whom earlier chargesheet was submitted showing them absconders. rejected the subsequent chargesheet which was filed after further investigation carried out in light of order dated 27.4.1999 and thereby refused to summon the petitioner for being put on trial and thus, he was allowing the application of the informant. whereby the prayer was made to proceed against the accused. Shrawan Bhagat and Lalan Bhagat. against whom earlier the chargesheet was submitted by the police and cognizance had already been taken and by virtue of which the two accused. Shrawan Bhagat and Lalan Bhagat had been summoned under Section 204 of the Code of Criminal Procedure. The Chief Judicial Magistrate was categorically observing that at the time of passing order of summoning against Shrawan Bhagat and Lalan Bhagat the present petitioner. Rekha Devi was not summoned. as a result of which she could not be subsequently summoned and as such, the petition filed by her was disposed of. The aforesaid order clearly indicates that on perusal of the record and the supplementary chargesheet which was submitted against the petitioner showing two accused, Lalan Bhagat and Shravan Bhagat, Innocent, the Chief Judicial Magistrate, Saharsa disbelieved supplementary chargesheet and. Accordingly, did not order to summon the petitioner. The said order was challenged in Criminal Revision No. 385 of 1999 by accused. Accordingly, did not order to summon the petitioner. The said order was challenged in Criminal Revision No. 385 of 1999 by accused. Shrawan Bhagat and Lalan Bhagat but the same was dismissed affirming the order of the Chief Judicial Magistrate passed on 9.6.1999. It hardly requires to be noted that the Magistrate empowered to take cognizance of an offence under Section 190(2) of the Code of Criminal Procedure on a police report of facts has to act only when there is sufficient material to satisfy him that some offence or offences appear to be committed by some persons known or unknown. As such, it has been held that once the Magistrate takes the cognizance of the offence on the basis of the final form submitted by the police under Section 173(2) of the Code of Criminal Procedure. it is his duty to find out who the offenders really are. Once he comes to that conclusion about the commission of an offence by some one and decides to summon him. then he could equally decide due to insufficiency of materials in the police report that the person named in the final form as accused does not appear to be involved in commission of the offence and as such may not summon him and that order becomes final in respect of that accused as the said order decides the right of that accused and that amounts to the decision of the case in respect to that accused to that extent. As such, that order cannot be reviewed as per the provisions of Section 362 of the Code of Criminal Procedure. The order dated 10.8.2001 summoning the petitioner not only amounts to reviewing the earlier order dated 9.6.1999 by which the Chief Judicial Magistrate, Saharsa had decided not to proceed against the petitioner, but also the order dated 25.6.2001 of the Revisional Court, that's Additional Sessions Judge-I. Saharsa, in Criminal Revision No. 385 of 1999 affirming the order dated 9.6.1999 passed by the Chief Judicial Magistrate Saharsa, which was without jurisdiction and amounts to an abuse of the process of Court. 5. Due regard being had to the facts and the circumstances of the case. the order dated 13.2.2008 passed by the Additional Sessions Judge. Fast Track Court No. III. 5. Due regard being had to the facts and the circumstances of the case. the order dated 13.2.2008 passed by the Additional Sessions Judge. Fast Track Court No. III. Saharsa in Criminal Revision No. 202 of 2001 and order dated 10.8.2001 passed in G.R. Case No. 1372 of 1995, arising out of Salkhua P.S. Case No. 122 of 1995, by the Chief Judicial Magistrate, Saharsa are hereby quashed and the application is allowed. Application allowed.