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2012 DIGILAW 567 (JHR)

Ram Chandra Verma v. State of Jharkhand

2012-04-12

PRASHANT KUMAR

body2012
JUDGMENT By Court.-In this application, petitioners prayed for quashing of order dated 19.03.2001 in T.R. No. 665 of 2001 corresponding to P.C.R. No. 56 of 1999, whereby the learned Judicial Magistrate, Dumka, on being satisfied that prima facie offences under Sections 147, 323, 342, 449, 452/34 of the IPC are made out against petitioners, issued summon against them. 2. Sans unnecessary particulars facts of the case lies in a narrow compass. It appears that Dumka P.S. Case No. 166 of 1998 dated 06.12.1998 was instituted, on the information of Vimal Kumar Modi against petitioners and two others. It further appears that police after investigation submitted charge-sheet against the accused namely Sanjay Verma and Lalu Verma. However, petitioners were not sent up for trial. It appears that the then Chief Judicial Magistrate, Dumka vide order dated 22.02.1999, took cognizance against, the aforesaid two accused Sanjay Verma and Lalu Verma under Sections 302, 324, 34 and 552 of the IPC and by the same order discharged petitioners. It is relevant to mention that against the aforesaid Order of learned Chief Judicial Magistrate, Dumka, informant filed an application under Section 482 of the Cr PC before the Hon’ble Patna High Court, Patna vide Criminal Misc. No. 27612 of 1999. The said application disposed of by Hon'ble Patna High Court vide order dated 27.01.2000. Operative portion of the aforesaid order reads as under :- "In this case it appears that though the petitioner has filed a protest petition yet the same has not been disposed of in accordance with law. Accordingly, the petitioner if so advised, may file a fresh petition by way of protest, against the final form submitted by the Investigating Officer which shall be considered and disposed of strictly in accordance with law with reference to the materials on record without being prejudiced by the order of this Court. This application is, accordingly, disposed of." 3. In view of aforesaid order of Patna High Court, informant filed, an application before the Chief Judicial Magistrate, Dumka on 07.11.2000, praying therein that protest petition filed by him be considered and disposed of in accordance with law. It appears that learned Chief Judicial Magistrate transferred the case in the file of learned Court below. In view of aforesaid order of Patna High Court, informant filed, an application before the Chief Judicial Magistrate, Dumka on 07.11.2000, praying therein that protest petition filed by him be considered and disposed of in accordance with law. It appears that learned Chief Judicial Magistrate transferred the case in the file of learned Court below. Thereafter learned Court below passed impugned order and issued, summons to the petitioners, as ac cording to him prima facie offences under Sections 147, 323, 342, 449, 452/34 of the IPC are made out. 4. Sri A.K. Kashyap, Sr. Advocate appearing for the petitioners, submits that the order of Patna High Court is illegal because petitioners, who were discharged by the then Chief Judicial Magistrate, Dumka, have not been heard by the Patna High Court, which is mandatory according to the proviso of Section 398 of the Cr PC. Accordingly, he submits that follow up action of aforesaid illegal order is also illegal, therefore, cannot be sustained. He further submits that even assuming that the aforesaid order is legal, then also impugned order cannot be sustained. He submits that Patna High Court directed the Magistrate to pass order on the protest petition in accordance with law. He submits that at the time of passing of impugned order original case has already been committed to the Court of Sessions and thereafter Sessions Case No. 235 of 1999 had already been instituted. He submits that after commitment of the case to the Court of Sessions, it is not open to Magistrate to exercise power under Section 204 (1) (b) of Cr PC and issue summons to other accused persons. Accordingly he submits that the impugned order is wholly without jurisdiction and against the law, therefore, the same is not in consonance with the direction of Patna High Court. 5. Sri Rajesh Kumar, G.P.-V and Sri S.K. Murty, learned counsel for the respondent No.2, submit that since the petitioners not challenged the order of Patna High Court in the Hon'ble Supreme Court same become final, thus, now petitioner cannot raise any grievance against that order and that too in this Court. It is further submitted that this Court has no power to set aside and/or declare any order of Patna High Court as illegal. It is further submitted that this Court has no power to set aside and/or declare any order of Patna High Court as illegal. It is submitted that it is well settled that if police after investigation not sent up any accused for trial, then informant has right to file protest petition and pray for issuance of summon to that accused. Thus, learned Magistrate had jurisdiction to issue summon to petitioner. 6. Having heard the submissions, I have gone through the record of the case. The first contention of Sri Kashyap that the order passed by the Patna High Court is illegal is liable to be rejected because petitioners did not challenge it before the Hon'ble Supreme Court. Thus, petitioners accepted the aforesaid order of Patna High Court. Hence, in this application they cannot raise any grievance against order of Patna High Court. 7. Now coming to the second contention it is worth mentioning that Hon'ble Patna High Court directed the Magistrate to consider, the protest petition in accordance with law. From perusal of impugned order, it is clear that learned Magistrate at the time of passing the impugned order was knowing that original case had already been committed to the Court of Sessions and after commitment Sessions Trial No. 235 of 1999 was instituted and pending before 6th Additional Sessions Judge, Dumka. 8. It is well settled that once the case is committed to the Court of Sessions, it is not open for the Magistrate to issue summons to other persons in exercise of power under Section 204(1)(b) of Cr PC. In this connection paragraph Nos. 12 & 13 of the judgment of Hon'ble Supreme Court in Jile Singh v. State of Uttar Pradesh and another, reported in (2012) 3 SCC 383 is relevant, which run as follows :- "12. In the present case, if, the order passed by the Chief judicial Magistrate, Mathura, in issuing summons against the appellant on the complaint filed by respondent 2 complainant, which has been confirmed by the High Court, is allowed to stand, it would mean addition of the appellant to the array of the accused in a pending case before the Sessions Judge at a stage prior to collecting any evidence by that Court. This course is absolutely impermissible in view of the law laid down, by a three Judge Bench of this Court in Ranjit Singh. 13. This course is absolutely impermissible in view of the law laid down, by a three Judge Bench of this Court in Ranjit Singh. 13. The stage of Section 207 Cr PC having been reached in the case it was not open to the Chief Judicial Magistrate, Mathura to exercise the power under Section 204(1)(b), Cr PC and issue summons to the appellant. The order of the Chief Judicial Magistrate, Mathura is totally without jurisdiction. The High Court was clearly in error in not keeping view the law laid by this Court in Ranjit Singh followed by a subsequent decision in Kishori Singh and in upholding the illegal order of the Chief Judicial Magistrate, Mathura." 9. As noticed above, in the instant case, the case had already been committed to the Court of thereafter Sessions Trial No. 235 of 1999 is pending before 6th Additional Sessions Judge, Dumka. Thus, the Magistrate has no power to issue summon under Section 204(1)(b) of the Cr PC. Under the said circumstances, impugned order is wholly without jurisdiction. It is needless to reiterate that Hon'ble Patna High Court directed the Magistrate to pass order in accordance with law, but in the instant case Magistrate passed order, which is totally against the law. Thus, in my view, impugned order cannot be sustained. 10. In the result, this application is allowed. The impugned order dated 19.03.2001. In T.R. No. 665 of 2001 corresponding to P.C.R. No. 56 of 1999 pending in the Court of Judicial Magistrate, 1st Class, Dumka, is hereby quashed. Application allowed.