Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 255 (PAT)

Bipin Roy v. State of Bihar

2014-02-14

RAKESH KUMAR

body2014
ORDER Heard learned counsel for the petitioner, Sri Pradip Narayan Kunwar, learned Addl. Public Prosecutor as well as learned counsel, who has appeared on behalf of the complainant/Opp.Party no.2. 2. The petitioner, who is accused in a case for offence under Section 376 of the Indian Penal Code, has approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 12.08.2011 passed by the learned Chief Judicial Magistrate, Purnia in Complaint Case No. CA-633 of 2011. By the said order, the learned Magistrate after conducting enquiry has passed order of cognizance under Section 376 of the Indian Penal Code. 3. Short fact of the case is that initially, Opp.Party no.2 had approached K.Hat Police Station, Purnea and on the basis of her fardbeyan, an F.I.R. vide K.Hat P.S. Case No.182 of 2010 was registered on 28.05.2010 against one sitting M.L.A., namely, Raj Kishore Keshri and the petitioner, who was at the relevant time Private Secretary of M.L.A. It was alleged by the complainant/ informant that she was repeatedly raped by both the accused persons. After the F.I.R. was lodged, the police investigated and submitted final report within a short period on 31.08.2010. After noticing the fact regarding submission of final report, a protest petition was filed by Opp.Party no.2, which was treated as complaint and after recording statement of the complainant on solemn affirmation and examining three witnesses during the enquiry, the learned Magistrate satisfied with the case passed order of cognizance on 12.08.2011, which has been assailed in the present petition. 4. Learned counsel for the petitioner, while assailing the impugned order, submits that in the police case, which was registered on the basis of fardbeyan of the complainant, the complainant/informant herself was examined under Section 164 of the Code of Criminal Procedure and in her statement, she categorically gave go bye to her allegation made in the F.I.R.. She further stated that as per instance of someone else, she had lodged false case. It was further argued that during investigation of the police case, the husband of the informant/complainant was examined by the police, who has not at all stated regarding commission of offence against either of the accused persons under Section 376 of the Indian Penal Code. She further stated that as per instance of someone else, she had lodged false case. It was further argued that during investigation of the police case, the husband of the informant/complainant was examined by the police, who has not at all stated regarding commission of offence against either of the accused persons under Section 376 of the Indian Penal Code. Learned counsel for the petitioner has placed F.I.R. as well as complaint petition to persuade this Court that the allegation is absurd and in view of absurdity, the order of cognizance passed by the learned Magistrate is liable to be set aside. Relying on a Judgment of the Hon’ble Apex Court reported in 2011 (1) PLJR 23(SC); Manoj Mahavir Prasad Khaitan Vs. Ram Gopal Poddar & Anr, he submits that if this Court is satisfied regarding the absurdity of the allegation, while exercising power under Section 482 of the Code of Criminal Procedure, this Court is fully competent to interfere even against the order of cognizance and, as such, it has been prayed for setting aside the order of cognizance. 5. Learned counsel appearing on behalf of the complainant/Opp.Party no.2 has vehemently opposed the prayer of the petitioner. He submits that of course, the petitioner in the present petition has brought on record statement of the complainant recorded on solemn affirmation, he has not brought on record statement of three witnesses, which were recorded during enquiry. He orally submits that during enquiry at least one of the witnesses has categorically stated that he was telephonically informed by the complainant regarding commission of rape by accused persons. According to learned counsel for Opp.Party no.2, in the order of cognizance, there is no apparent error warranting interference by this Court. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. At the time of argument, it was accepted by learned counsel for the petitioner that one of the accused, namely, Raj Kishore Keshri was at the relevant time sitting M.L.A. He has also accepted that after submission of final report by the police, said M.L.A. was done to death by the complainant herself and she was made accused on allegation of murder of accused no.1 of the complaint case i.e. Raj Kishore Keshri, in which she was tried and finally convicted. 7. 7. In this case earlier by order dated 22.11.2013 passed by a Co-ordinate Bench of this Court, carbon copy of the case diary was called for, which has been received and kept on record. Of course, at the time of hearing a petition under Section 482 of the Code of Criminal Procedure, against an order of cognizance, there was no requirement for examining the case diary, that too in the present case, which has proceeded on the basis of protest-cum- complaint petition, but since the case diary was called for and is on record, this Court has examined the case diary. In the present case, order of cognizance was passed on complaint petition after enquiry and, as such, at the time of passing order of cognizance, the learned Magistrate was not at all required to examine the case diary. He was required to proceed with the case on the basis of materials brought on record during enquiry in the complaint case and, as such, this Court is of the opinion that the learned Magistrate has committed no error in passing the impugned order. Fact remains that one of the accused was sitting M.L.A. at the relevant time as well as the petitioner , who was alleged to be Private Secretary of accused no.1. It is also not in dispute that even after registration of F.I.R. in K.Hat P.S. Case No.182 of 2010, none of the accused was arrested during investigation, whereas case was registered for the offence under Section 376 of the Indian Penal Code with specific allegation. Immediately after submission of final report, protest petition was filed by the complainant. It is also not in dispute that during the pendency of the protest petition, the complainant had murdered accused no.1. It was alleged that the complainant had murdered accused no.1, who was sitting M.L.A. It has also been accepted that while she was in custody, the statement on solemn affirmation of the complainant was recorded by the learned Magistrate in the protest-cum- complaint petition. In the aforesaid background as well as on perusal of the complaint petition, the Court is satisfied that the allegation is not an absurd and in view of absurdity, the order of cognizance passed by the learned Magistrate may not be interfered. Moreover, after enquiry the learned Magistrate only after being satisfied that the case was made out, has passed order of cognizance. Moreover, after enquiry the learned Magistrate only after being satisfied that the case was made out, has passed order of cognizance. Learned counsel for the petitioner while arguing the case submits that the allegation was absurd, however nothing was argued on the illegality of the order of cognizance. Moreover, at the time of passing order of cognizance, the learned Magistrate was not at all required to examine the case diary or other materials. On going through the record, the Court is satisfied that the learned Magistrate has rightly passed order of cognizance, which requires no interference. 8. Accordingly, I do not find any ground for interference. The petition stands dismissed. 9. At the time of recording order, it was informed by Opp.Party no.2 that the case has already been committed to the court of Session vide Sessions Trial No.446 of 2012. It was required to inform the Court at the very inception that stage has already been changed. In any event, the case has already been committed to the court of Sessions. 10. Before parting with the order, keeping in view the background of the case and seriousness of the accusation as well as the fact that order of cognizance was passed long back in the month of August,2011, it is desirable to direct the trial court to complete the charge matter within a period of one month from the date of receipt/production of a copy of this Court and thereafter steps may be taken to conclude the trial expeditiously preferably within a period of nine months from the date of completion of proceeding of charge. While proceeding with the trial, the trial court is required to take up this matter at least twice in a week. 11. Let a copy of this order may be communicated to the court below through Fax on cost being deposited by learned counsel for Opp.Party no.2.