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2011 DIGILAW 526 (JHR)

Hriday Narayan Rai v. State of Jharkhand

2011-06-17

PRAKASH TATIA

body2011
JUDGMENT: 1. Heard learned counsel for the petitioner. 2. This writ petition has been preferred against the order dated 23.06.2006 by which cognizance has been taken by the learned trial court for the offence, triable by the court of Sessions. 3. Earlier also the petitioner had moved this Court by filing Cr.M.P. No. 1372 of 2008 with the same plea that since mandatory provisions of Section 202(2) of the Code of Criminal Procedure has not been followed which requires examination of all the witnesses named by the complainant in a case, where offence, alleged to have been committed, is triable by the Sessions Court , therefore, the order of cognizance is bad in law. The said Criminal Miscellaneous petition was dismissed vide order dated 9th November, 2009 on the ground that petitioner failed to show how prejudice has been caused or is likely to be caused to the accused person on account of non compliance of the aforesaid provision. The said decision was given by the learned Single Judge of this Court after considering the judgment of the Hon'ble Supreme Court , relied upon by the learned counsel for the petitioner , delivered in the case of Rosy and another vs. State of Kerala and others ( AIR 2000 SC 637 ). 4. The petitioner again approached this Court by submitting the present petition for the same relief and learned counsel for the petitioner vehemently submitted that since mandatory provisions of law has not been complied with and, therefore, taking of cognizance by the trial court is bad in law. It is also submitted that the learned Single Judge vide order dated 9th November, 2009 dismissed the earlier petition of the writ petitioner merely on the ground that the petitioner failed to show what prejudice is likely to cause and in the present petition the petitioner has given the facts to show that because of these facts mentioned in the petition he will be prejudiced because of non examination of the witnesses. Learned counsel for the petitioner also relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Superintendent and Remembrancer of Legal Affairs, W.B. vs. Mohan Singh , reported in AIR 1975 Supreme Court, 1002) , wherein it has been held that rejection of the prior application for quashing of the charge is no bar for maintaining the second petition for quashing of the charge. The said case was under consideration under the old Cr.P.C 1898. However, the ratio is that , according to the learned counsel for the petitioner, the second petition is maintainable. 5. I have considered the submissions of the learned counsel for the petitioner and perused the reasons given in the order dated 9th November, 2009 as well as the decision of the Hon'ble Apex Court in the case of Superintendent and Remembrancer(supra). In the case before the Hon'ble Supreme Court , the matter under consideration was that a petition was submitted for quashing of the proceedings on the ground that the criminal proceeding constituted an abuse of the process of the court. The said application was dismissed by the Division Bench of the High Court on the ground that the points raised were depending on certain questions of fact which have to be ascertained on evidence by the Court of facts and, therefore, the High Court did not interfere in the proceeding against the petitioner of the said case. When again petition was submitted and when the matter came up before the Supreme Court, the Hon'ble Supreme Court held that : “The High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked”. It was also observed that : “ It is difficult to see how in these circumstances it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the order made by it on the earlier application”. The Hon'ble Supreme Court further observed that: “The High Court was in the circumstances entitled to entertain the subsequent application of respondent nos.1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice”. In the facts and circumstances of the case, it was further held that : “The facts and circumstances obtaining at the time of the subsequent application of respondents nos.1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years”. 6. A reading of the judgment of the Hon'ble Supreme Court clearly indicates that the second petition for the same relief can be entertained when the subsequent event demands interference by the High Court to invoke the jurisdiction for quashing the order with the rider it should not amount to reviewing the earlier order passed by the High Court. In this case, the specific issue was raised by the writ petitioner that the mandatory provision of law has not been followed by relying upon the judgment of the Supreme Court, which had been considered by the learned Single Judge of this Court and relevant paragraphs have been quoted and after taking help of the Supreme Court judgment itself, this Court observed that merely non compliance of the provision would not vitiate the further proceedings in all cases, as has been laid down by the Supreme Court in this very situation and this Court held that the petitioner failed to show the prejudice which has been caused or likely to be caused by the accused person on account of non compliance of the aforesaid provision. 7. The facts and situation, which was on the day when earlier petition was decided by this Court and today is the same that some of the witnesses were not examined and the petitioner failed to demonstrate the prejudice to him, cannot improve his case by subsequently submitting more facts in the subsequent petition, which would be against all the propriety , in view of the fact that by this, in fact, this Court will have to declare the petitioner, who was found failed to show any prejudice, prejudice will be caused. Admittedly, this is nothing but another way to challenge the finding recorded by the coordinate Bench of the High Court in subsequently filed petition. In fact, all the facts and circumstances and other aspects, as contended in the present writ petition, were already available to the petitioner in the earlier petition. 8. I, therefore, do not find that the present petition can be entertained. Hence, the writ petition is dismissed.