Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1042 (PAT)

Ashok Kumar Singh v. State of Bihar

2012-07-27

RAKESH KUMAR

body2012
ORDER Both the cases arise out of same order i.e. order dated 19.02.2010 passed in Ahiyapur P.S. Case No.81 of 2001 , T.R. No.538 of 2010 by the learned Chief Judicial Magistrate, Muzaffarpur and, as such, both the cases have been heard together and are being disposed of by this common order. 2. By order dated 19.02.2010, the learned Chief Judicial Magistrate has rejected the petition dated 09.02.2010 filed by the petitioner in the second case i.e. in Dr. S.K.Jayaswal’s case. Petition was filed by the petitioner before the learned Chief Judicial Magistrate for proceeding with the case as summons trial case and not as warrant case. Learned Chief Judicial Magistrate, while dismissing the petition, directed the accused persons to remain present on 08.03.2010 for framing of charge. 3. Short fact of the case is that a written information was given by Opp.Party no.2 before the Officer Incharge of Ahiyapur Police Station disclosing therein that Dr. S.K.Jayaswal and others had committed offence under Section 304 of the Indian Penal Code. It was alleged that in a minor operation of the nose, the nephew of the informant died due to over dose of anesthesia. On the aforesaid allegation, an F.I.R. vide Ahiyapur P.S. Case No.81 of 2001 was registered for the offence under Section 304 of the Indian Penal Code. The police after investigation submitted chargesheet under Section 304A of the Indian Penal Code against the petitioners of both the cases. However, the learned Chief Judicial Magistrate differing with the police report took cognizance of offence under Section 304 of the Indian Penal Code and the case was subsequently committed to the court of Session and the learned court remanded the case holding that the offence under Section 304 of the Indian Penal Code was not made out rather it was the case for offence under Section 304 A of the Indian Penal Code. In the meanwhile, petitioner Dr. S.K.Jayaswal approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure vide Cr.Misc.No.29016 of 2002 on the plea that it was not a case under Section 304 of the Indian Penal Code rather it was a case for the offence under Section 304A of the Indian Penal Code. This Court after hearing the parties was of the opinion that the case was under Section 304 A of the Indian Penal Code. This Court after hearing the parties was of the opinion that the case was under Section 304 A of the Indian Penal Code. After hearing the parties this Court by its order dated 11.10.2006 in Cr.Misc.No.29016 of 2002 observed as follows:– “From submission made on behalf of the parties it appears that prima face if the case is proceeded under Section 304A I.P.C., the same will not prejudice any of the party. The learned court below is directed to hear the parties on the above premises and pass an order afresh in accordance with law in consonance with the above observation.” 4. Thereafter, a petition was filed on behalf of Dr. S.K.Jayaswal on 18.12.2006 under Section 228 of the Code of Criminal Procedure in view of order passed by this Court in Cr. Misc.No.29016 of 2002. The petitioners in either of the petitions have not brought on record the order dated 26.02.2007 passed by the learned Sessions Judge-cum- F.T.C. no.3. However, at the time of hearing, learned counsel for the petitioners has produced a photo copy of the order dated 26.02.2007, which is kept on record. 5. While opposing the prayer of the petitioners before learned Addl. Sessions Judge, learned Special Public Prosecutor had drawn attention of the learned Sessions Judge towards evidence of the informant , the mother of deceased as well as patients of the hospital and the circumstances “that Dr. S.K. Jaiswal has also taken away B.H.T. of deceased from hospital to rectify the wrong and further submitted that the present case is squarely covered u/s 304 I.P.C. as there was mens rea/intention on the part of doctor, as a result of which, the deceased had died, and therefore this case cannot be remanded to the court below for holding trial u/s 304A I.P.C. as observed by the Hon’ble Court.” 6. Learned Sessions Judge in view of direction of this Court observed “Therefore in view of the said observation there is no option left to this Court to deviate from the observation given by the Hon’ble Court in Cr.Misc.No.29016 of 2002. 7. Since no offence u/s 304 I.P.C. is attributable as per observation of the Hon’ble Court against the accused persons but the offence u/s 304A I.P.C. is made out, which is triable by 1st Class Magistrate. 7. Since no offence u/s 304 I.P.C. is attributable as per observation of the Hon’ble Court against the accused persons but the offence u/s 304A I.P.C. is made out, which is triable by 1st Class Magistrate. Accordingly, the case is remanded back to the court below for holding the trial u/s 304A I.P.C. Thus the petition filed on behalf of the accused u/s 228 Cr.P.C. as well as its rejoinder stands disposed of. Both the accused persons are directed to appear before the committing court on dated 26.03.07 for follow on action in the court. Let a copy of the order along with L.C.R. be sent to the court below for information and needful.” 8. Thereafter, after the case was remitted back, learned counsel for the petitioners submits that by order dated 27.04.2007, the learned Magistrate keeping in view the fact that offence under Section 304 A of the Indian Penal Code was a summons case explained accusation to accused/petitioners under Section 304 A of the Indian Penal Code and thereafter, the case remained pending for evidence, but at subsequent stage by an order dated 16.01.2010, learned Chief Judicial Magistrate, after examining the record and keeping in view the fact that the matter was remitted back under Section 228 A of the Code of Criminal Procedure and, as such, the case was triable as warrant case, corrected the order and fixed the case for framing of charge adopting the procedure of warrant case. After the order was passed by the learned Magistrate on 16.01.2010 a petition was filed before the learned Chief Judicial Magistrate by the petitioners for trying the case as summons case, which was refused and same has been impugned in both the cases. 9. Sri Rajeev Roy, learned counsel for the petitioner appearing in Cr. Misc. No. 14951 of 2010 submits that since this Court in order dated 11.10.2006 passed in Cr.Misc.No.29016 of 2002 had already observed that the case was required to be proceeded for offence under Section 304 A of the Indian Penal Code, it will be deemed that the case was never committed to the court of Session and the learned Magistrate was required to proceed with the case as summons case and not as warrant case. The Court is of the opinion that such submission is requested to be noticed only for its rejection. 10. The Court is of the opinion that such submission is requested to be noticed only for its rejection. 10. Sri Ratan Kumar, learned counsel appearing on behalf of the petitioner in Cr.Misc.No.13448 of 2010 has argued that once the learned Magistrate has explained the accusation treating the case as summons case, at subsequent stage the learned Magistrate was not authorized to review/recall its own order. 11. Learned counsel for the petitioners in both the cases keeping in view the fact that the case was registered in the year 2001 and the matter is still pending for evidence as summons case, have argued that this Court may set aside the impugned order, whereby the learned Magistrate has decided to proceed denovo as warrant case. 12. Sri Kanhaiya Prasad Singh, learned Senior Counsel, who has appeared on behalf of the informant/Opp.Party no.2 as well as Sri Jharkhandi Upadhaya, learned Addl. Public Prosecutor have opposed the prayer of the petitioners. According to them, the materials, which were collected during the investigation, were sufficient to disclose the fact that offence under Section 304 of the Indian Penal Code was committed by both the petitioners. However, this Court had already adjudicated the issue earlier, but he submits that once the case was committed to the court of Session and at subsequent stage, while exercising power under Section 482 of the Code of Criminal Procedure, learned Sessions Judge had remitted back the matter to the committing court, as per statutory provision, trial was required to be proceeded as warrant case and not as summons case. 13. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Fact remains that after the case was remitted back to the committing court, the learned Magistrate had explained the accusation treating the case as summons case. Once the Magistrate has passed order, at subsequent stage he was not required to review/recall its own order but keeping in view the fact that there is statutory provision for proceeding with the case as warrant case, no court can issue any direction contrary to the statutory provision. It is settled law that if the Statute says to proceed in a particular manner, then the proceeding is to commence in the same manner and not in the other manner. It is settled law that if the Statute says to proceed in a particular manner, then the proceeding is to commence in the same manner and not in the other manner. There are other points for not interfering with the impugned order in view of provision under Section 259 of the Code of Criminal Procedure. The Code empowers a Magistrate to proceed even in a summons case as warrant case. Under Section 259 of the Code of Criminal Procedure, even though, there was no order for remittance under Section 228 of the Code of Criminal Procedure, the Magistrate was fully competent to proceed with the case as warrant case. The Court is not adjudicating on the point of error committed by the learned Magistrate, whereby he had reviewed its own order, but for the ends of justice, while exercising power under Section 482 of the Code of Criminal Procedure, in view of the facts and circumstances of the case, this Court approves the order dated 16.01.2010 as well as order dated 19.02.2010, which has been assailed in the present case. At this point Section 228 (1)(a) of the Code of Criminal Procedure is required to be quoted hereinbelow:– “228. Framing of charge.–(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which– (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate and thereupon the Chief Judicial Magistrate,[ or any other Judicial Magistrate of the first class should direct the accused to appear before the Chief Judicial Magistrate, or as the case may be, the Judicial Magistrate of the first class , on such date as he deems fit, and thereupon such Magistrate ] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;” 14. After perusing the aforesaid provision, there is no reason to proceed contrary to the statutory provision. After perusing the aforesaid provision, there is no reason to proceed contrary to the statutory provision. Once a case is remitted back by the Sessions Court while exercising power under Section 228 (1) (a) of the Code of Criminal Procedure, the case by committing court is required to proceed as warrant case even for offences relating to summon cases and, as such, I do not find any error or defect in the order impugned. 15. Both the petitions stand dismissed. In view of the fact that occurrence had taken place long back in the year 2001, while dismissing aforesaid petitions, it is desirable to direct the court below to conclude charge matter within a period of two months from the date of receipt/production of a copy of this order. The learned Magistrate is required to conclude the case within a period of six months i.e. six months from the date of concluding the charge matter. The learned Magistrate, while proceeding with the case, is required to proceed at least twice in a week. 16. Let a copy of this order be sent to the court below forthwith.