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2012 DIGILAW 1228 (PAT)

Awaneesh Kumar Singh v. State of Bihar

2012-09-03

BIRENDRA PRASAD VERMA

body2012
ORDER Heard learned counsel for the petitioner, learned Additional Public Prosecutor appearing on behalf of the State and learned counsel appearing on behalf of the opposite party no. 2. 2. The petitioner has approached this Court under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), assailing the correctness, propriety and legality of the order dated 24.8.2007 passed in Complaint Case No. 1916 (C) of 2006 by the learned Judicial Magistrate, 1st Class, Patna, dismissing the aforesaid complaint petition filed on behalf of the petitioner in exercise of his powers under Section 203 Cr.P.C. 3. The facts involved in the present case can be put in a narrow compass. Admittedly, the petitioner filed a petition of complaint giving rise to Complaint Case No. 1916 (C) of 2006 in the court of learned Chief Judicial Magistrate, Patna, in which opposite party no. 2 was specifically named as accused. Besides opposite party no. 2, his two body guards, though not specifically named, were also arrayed in the category of accused. The Complainant-petitioner was examined on S.A. on 5.12.2006. During the course of enquiry under Section 202 Cr.P.C. the petitioner produced altogether four witnesses, namely, (1) Babloo Deo, (2) Chhotan Singh (3) Santosh Kumar, and (4) Sunil Prakash Tiwary. However, by the impugned order dated 24.8.2007 the aforesaid complaint petition filed on behalf of the petitioner has been dismissed by the learned Magistrate in purported exercise of his powers under Section 203 Cr.P.C. 4. Learned counsel for the petitioner has raised a very short question. However, by the impugned order dated 24.8.2007 the aforesaid complaint petition filed on behalf of the petitioner has been dismissed by the learned Magistrate in purported exercise of his powers under Section 203 Cr.P.C. 4. Learned counsel for the petitioner has raised a very short question. It is submitted that once the petitioner filed a petition of complaint and once he was examined on S. A. by the learned Magistrate and once statements of four witnesses were recorded under Section 202 Cr.P.C., the learned Judicial Magistrate was obliged to consider those materials only for the purpose of taking cognizance and for issuance of process under Section 204 Cr.P.C., or alternatively for purpose of dismissal of the complaint petition in terms of Section 203 Cr.P.C. According to the learned counsel, the learned Judicial Magistrate while passing the impugned order has not at all discussed and considered the statements of witnesses recorded under Section 202 Cr.P.C. yet by taking into consideration the other materials, which were not at all relevant, has dismissed the complaint petition filed on behalf of the petitioner purportedly under Section 203 Cr.P.C. Therefore, it is contended that the matter requires reconsideration and fresh decision by the learned Judicial Magistrate. 5. Learned counsel appearing on behalf of the opposite party no. 2 has strongly opposed the prayer and has submitted that in the complaint petition, apart from opposite party no. 2, his two body guards, though not specifically named, were also arrayed as accused persons, but in the present revision application those two body guards have not been impleaded as party. Therefore, according to learned counsel, in their absence the present revision application cannot proceed. In support of his contention he has placed reliance on a judgment of the Apex Court in the case of A. K. Subbaiah & others vs. State of Karnataka & others, reported in (1987) 4 SCC 557 . He has also placed reliance on Section 401 (2) Cr.P.C. to make out a point that the impugned order passed by the learned Judicial Magistrate, if set aside, would adversely affect the two body guards, who are not party in the present proceeding. 6. After having heard the parties and on consideration of the materials available on record, this Court is of the considered opinion that the matter requires reconsideration and fresh decision by the learned Judicial Magistrate, so far as opposite party no. 6. After having heard the parties and on consideration of the materials available on record, this Court is of the considered opinion that the matter requires reconsideration and fresh decision by the learned Judicial Magistrate, so far as opposite party no. 2 is concerned. It is well settled that in a complaint case once statement of complainant is taken on oath and once the statements of witnesses are recorded under Section 202 Cr.P.C., then the learned Judicial Magistrate is required to find out only a prima facie case for the purpose of taking cognizance and for the issuance of process under Section 204 Cr.P.C. If the learned Judicial Magistrates, on consideration of the materials available on record, comes to a finding that no prima facie case is made out, then he would be obliged to dismiss the complaint petition under Section 203 Cr.P.C. 7. It is also well settled that at that stage the learned Judicial Magistrate is required to see only the complaint petition, statement of complainant on oath and statements of witnesses recorded under Section 202 Cr.P.C. and nothing beyond. At that stage, the learned Judicial Magistrate cannot turn himself as a trial court and is not required to consider the possible defence of the accused. In fact, at that stage neither the accused has right to be heard nor any material produced by the accused can be considered either for the purpose of issuance of process or for the purpose of dismissal of the complaint petition. 8. In the present case, this Court finds that while passing the impugned order dated 24.8.2007, the learned Judicial Magistrate has not at all considered the statement of complainant on oath and has also not taken into consideration the statements of witnesses recorded under Section 202 Cr.P.C., yet by looking into some other materials, which were not relevant, he has passed the impugned order dismissing the complaint petition filed by the petitioner. This Court finds that the learned Judicial Magistrate, 1st Class, Patna has exceeded his jurisdiction and has failed to comply the mandate of law and procedure prescribed under Chapter XV Cr. P.C. 9. At this place, this Court finds that there is substance in the objection raised on behalf of the opposite party no. 2, so far non-impleadment of other co-accused persons namely two body guards of opposite party no. 2 is concerned. P.C. 9. At this place, this Court finds that there is substance in the objection raised on behalf of the opposite party no. 2, so far non-impleadment of other co-accused persons namely two body guards of opposite party no. 2 is concerned. Since two body guards were arrayed as accused persons in the complaint petition and the complaint petition has been dismissed by the impugned order, yet those two body guards have not been impleaded as opposite parties in the present revision application, therefore, the impugned order dismissing the complaint petition, so far those two body guards are concerned, shall be treated to have attained its finality. 10. For the reasons recorded above, the impugned order dated 24.8.2007 passed by the learned Judicial Magistrate, 1st Class, Patna in Complaint Case No. 1916 (C) of 2006, so far as opposite party no. 2 is concerned, is set aside and the matter is remitted back to the learned Judicial Magistrate, 1st Class, Patna for passing fresh order in accordance with law and in the light of the observations made above. 11. The application stands allowed with the observations and directions made above.