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2012 DIGILAW 342 (PAT)

Mahendra Ram v. State of Bihar

2012-02-27

ADITYA KUMAR TRIVEDI

body2012
JUDGMENT (CAV) A.K. Trivedi, J. Petitioner Mahendra Ram has challenged the order dated 13.1.2010 passed by Sri Rakesh Kumar, Judicial Magistrate, 1st Class, Sheohar at Sitamarhi in Complaint Case No. 127 of 2006. Sunita Devi v. Mahendra Ram, whereby and where under he has been summoned to face trial for an offence punishable under Section 376/511 of the IPC. 2. The matter of controversy arose on the basis of complaint petition bearing No. 127/2006 filed by opposite party No. 2 Sunita Devi before SDJM. Sheohar at Sitamarhi (Annexure-1) against the petitioner, Mahendra Ram and other putting an allegation that on 17.08.2006 at about 7:30 p.m. at Village-Kolluaha Thikha, P.S. Purnahia. District- Sitamarhi while she had gone to ease herself near sugarcane field. she was lifted by accused persons who threw her on the ground and then Mahendra Ram (petitioner) attempted to commit rape. During said course accused. Munila Ram and Manoj Singh had caught hold her hand while accused Nand Kishore Singh being armed with country made pistol, was keeping watch. On her alarm the villagers arrived, seeing when the accused persons escaped from there. Then thereafter, the matter was reported to her parents who informed respectable persons of the village who advised for panchayati but during course of panchayat as the accused persons indulged in criminal action against the family members, thereafter they had gone to hospital. She had also gone to police station but no case was instituted. 3. The learned SDJM transferred the case to the Court of Magistrate for holding an enquiry under Section 202 of the Cr PC whereupon vide order dated 5.12.2006, the complaint was dismissed under Section 203 of the Cr PC. The aforesaid order was challenged by the opposite party No. 2 under Criminal Revision No. 243 of 2006 which was disposed of by Additional Sessions Judge. FTC 3rd Sitamarhi and vide order dated 13.03.2007, the same was rejected. 4. Thereafter, Cri. Misc. No. 38725 of 2007 was preferred before the High Court which was allowed vide order dated 2nd April 2009. Accordingly, the, matter was remanded back to the learned lower Court for reconsideration and to proceed in accordance with law after observing that there happens to be sufficient material to proceed with the case. Accordingly, the learned Magistrate vide order dated 13.01.2010 summoned the petitioner and being aggrieved therewith, petitioner has filed instant petition. 5. Accordingly, the, matter was remanded back to the learned lower Court for reconsideration and to proceed in accordance with law after observing that there happens to be sufficient material to proceed with the case. Accordingly, the learned Magistrate vide order dated 13.01.2010 summoned the petitioner and being aggrieved therewith, petitioner has filed instant petition. 5. It has been submitted on behalf of the petitioner that wrong procedure has been adopted by the learned Magistrate in directly summoning the petitioner after having the case remanded to his file because of the fact that the aforesaid order happens to be under the banner of Section 398 of the Cr PC. Therefore, the learned Magistrate was required to proceed with further enquiry which Section 398 of the Cr PC does prescribe. Non-conduction of further enquiry makes the order impugned illegal from its grass-root level. 6. It has further been submitted that both the parties are on litigating terms since before. So many criminal cases are pending amongst the parties and the present one has maliciously been filed to teach a lesson. Then it has been submitted that filing of complaint petition narrating the plea that police had declined to register a case appears to be totally false and frivolous assertion in the back ground of the fact that for the occurrence alleged to have committed on 18.06.2006, there happens to be case and counter" case, registered at the police station. The case instituted at the instance of Bigan Ram, father of opposite party No.2 appears Purnahia P.S. Case No. 36 of 2006 while the case instituted by the son of petitioner happens to be Purnahia P.S. Case No. 35 of 2006. Further, it has been submitted that after going through the contents of FIR of Purnahia P.S. Case No. 35 of 2006 (Annexure-4). The allegation whatever been alleged by the opposite party No.2 appears to be completely demolished. Therefore taking into account the principles laid down by the Hon'ble Apex Court in celebrated judgment i.e. AIR 1992 SC 604 . State of Hariyana and others v. Bhajan Lal and others. It is fit case for quashing of the order impugned. 7. The allegation whatever been alleged by the opposite party No.2 appears to be completely demolished. Therefore taking into account the principles laid down by the Hon'ble Apex Court in celebrated judgment i.e. AIR 1992 SC 604 . State of Hariyana and others v. Bhajan Lal and others. It is fit case for quashing of the order impugned. 7. On the other hand learned counsel for the opposite party No.2 submitted that petitioner has got no leg to standby and challenge the order impugned at the present moment when the case after being committed is proceeding with the trial before the Court of sessions, whose all the prosecution witnesses have already been examined, statement of the accused had already been recorded and presently the case is posted for defence. Then submitted that whatever grounds have been raised on behalf of the petitioner was also raised before the High Court at any early occasion, and further, it happens to be a matter to be considered in a full- fledged trial. So far stage of cognizance and summoning of accused is concerned, only a prima facie material has to be seen and the same has been pointed out by the High Court while considering the allegation in consonance with the S.A., statement of witnesses. Therefore, it has been submitted that after having the order of the High Court the Magistrate has got no option than to summon the accused. 8. So far presence of prima facie case is concerned. that part had already been conclusively decided and held to be present on the record to justify summoning of accused in a Criminal Misc. case bearing No. 38725 of 2007 (Annexure-3). 9. State has endorsed the view of opposite party No.2 and submitted that when the trial has advanced to such length, then it will be futile attempt to adjudicate upon the matter. 10. Now the only question remains whether the action of Magistrate summoning the petitioner without conducting further enquiry happens to be illegal and if so, attracts setting aside of the order impugned. For that reference nay have 2010 (10) SCC 798, at paragraph-9 it has been held :- The matter as noticed by us earlier had been remanded back to the Chief Judicial Magistrate to hold a further enquiry. That direction did not necessarily oblige the Magistrate to record any further evidence in the case. For that reference nay have 2010 (10) SCC 798, at paragraph-9 it has been held :- The matter as noticed by us earlier had been remanded back to the Chief Judicial Magistrate to hold a further enquiry. That direction did not necessarily oblige the Magistrate to record any further evidence in the case. The nature of the inquiry was in the discretion of the Magistrate which mayor may not have included recording of further evidence on behalf of the complainant. The Magistrate could without recording any further evidence in the matter reappraise the averments made in the complaint and the material already on record to determine whether a prima facie case was made out against the accused persons. Inasmuch as the Magistrate in the- instant case summoned the witnesses and examined them afresh. he may have gone beyond what was legally necessary to do but that is no reason to hold that the recording of evidence by the Magistrate as a part of the further enquiry directed by the High Court would vitiate the proceedings before him or the• conclusion drawn on the basis of any such enquiry. So long as the Magistrate was satisfied that a prima facie case had been made out, he was competent to issue summons to the accused. 11. So far scope of application of Section 482 of the Cr PC is concerned, for that a reference may have 2011 Cr LJ 8, the relevant paragraph happens to be 19 which is as follows :- It is well settled that though the inherent powers of the High Court under Section 482 of the Code are very wide in amplitude, yet they are not unlimited. However, it is neither feasible nor desirable to lay down an absolute rule which would govern the exercise of inherent jurisdiction of the Court, Nevertheless, it is trite that powers under the said provision have to be exercise sparingly and with caution to secure the ends of justice and to prevent the abuse of the process of the Court. Where the allegations in the first information report or the complaint taken at its face value and accepted in their entirety do not constitute the offence alleged, the High Court would be justified in invoking its powers under Section 482 of the Code to quash the criminal proceedings. Where the allegations in the first information report or the complaint taken at its face value and accepted in their entirety do not constitute the offence alleged, the High Court would be justified in invoking its powers under Section 482 of the Code to quash the criminal proceedings. (See: R.P. Kapur v. State of Punjab and Rupan Deol Bajaj and another v. Kanwar Pal Singh Gill and another) 12. In the aforesaid background, now coming to the facts of the case apart from finding given by the High Court in Cri. Misc. No. 38725 of 2007, the learned Magistrate by the order impugned has also scrutinized the materials and found prima focie case coming out from the materials available on record. Consequent thereupon, issued warrant of arrest non-bailable against the accused for seeking their appearance. Thus, no illegality is traced out in the order impugned nor any procedural fault is apparent. Therefore, the present petition appears to be devoid of merit, the same is dismissed. Petition dismissed.