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2014 DIGILAW 314 (PAT)

Vikash Prasad @ Vikash Kumar v. State of Bihar

2014-03-05

RAKESH KUMAR

body2014
ORDER : Heard Sri Mahesh Narain Parbat, learned counsel for petitioners and Sri N.N.Tiwary, learned Addl. Public Prosecutor. None appeared on behalf of opp. party no. 2, whereas, opp. party no. 2 has already entered appearance through his counsel. On earlier date also, learned counsel for opp. party no. 2 had not appeared. 2. It was informed by Sri Parbat, learned counsel for petitioners that after passing of the impugned order by the learned Magistrate, stage in the case has not changed and still case is fixed for argument. 3. Petitioners, who are accused in Chapra Town P.S. Case No. 227of 2005 registered for the offences under Sections 341, 323, 324, 379/34 of the Indian Penal Code (for short “I.P.C.”), have approached this Court, invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (for short “Cr. P.C.”), with a prayer to quash an order dated 30-06-2009 passed by learned Sessions Judge, Saran at Chapra (hereinafter referred to as “Sessions Judge”), whereby revision i.e. Cr. Revision No. 190 of 2009, preferred by petitioners against the order dated 11-06-2009 passed by Sri Prabhat Krishna, learned Judicial Magistrate 2nd Class, Chapra in Trial No. 182 of 2009 has been rejected. The learned Magistrate by its order dated 11-06-2009 had allowed petition filed on behalf of informant under Section 311 of the Cr. P.C. for summoning one doctor and also for summoning injury report. 4. Learned counsel for petitioners submits that it is true that F.I.R. was lodged for offence under Sections 341, 323, 324, 379/34 of the I.P.C., however; after thorough investigation, police submitted charge-sheet under Sections 341 & 323/34 of the I.P.C. and the learned Magistrate took cognizance of the offices. He further submits that at much belated stage, while argument had commenced in the case, a petition was filed on behalf of prosecution on 01-12-2008 under Section 311 of the Cr. P.C. for summoning one doctor as well as summoning injury report. The said petition after hearing was rejected by the learned Magistrate on 28-02-2009 by a reasoned order. Sri Parbat, learned counsel for petitioners submits that subsequently after transfer of the then Judicial Magistrate, Chapra, for the same relief, one another petition was filed on 03-05-2009 and this time learned Magistrate allowed the petition, which was filed under Section 311 of the Cr. Sri Parbat, learned counsel for petitioners submits that subsequently after transfer of the then Judicial Magistrate, Chapra, for the same relief, one another petition was filed on 03-05-2009 and this time learned Magistrate allowed the petition, which was filed under Section 311 of the Cr. P.C. for summoning doctor as well as for summoning injury report by its order dated 11-06-2009. Sri Parbat submits that since on the same issue, the learned Magistrate after applying his mind had rejected the same, at subsequent stage the learned Magistrate was not authorized to allow similar petition, which was barred under Section 362 of the Cr. P.C. He submits that since order passed by the learned Magistrate was not in consonance with law, petitioners filed a revision, vide Cr. Revision No. 190 of 2009 before the learned Sessions Judge. However, the learned Sessions Judge, erroneously, only on the plea that in earlier petition name of doctor was not mentioned and in subsequent petition name of doctor was mentioned, has dismissed the revision petition. Sri Parbat has further argued that under Section 311 of the Cr. P.C., the learned Magistrate was not at all authorized to summon documents. In support of his argument, he has relied on a judgment of this Court, reported in 2007(1) P.L.J.R. 216 (Nesar Ahmed @ Nasser & Ors. -Vs.- The State of Bihar & Anr.). He has specifically referred to paragraphs 4 & 6 of the said judgment. Taking aid from the said judgment, it has been argued that under Section 311 of the Cr. P.C., a document was not required to be summoned by the learned Magistrate. On the aforesaid grounds, he has prayed for setting aside both the aforesaid orders in the present proceeding. 5. Sri N.N. Tiwary, learned Addl. Public Prosecutor supports the order passed by the learned Magistrate as well as order passed by the learned Sessions Judge. He submits that once against order of learned Magistrate, the petitioner had availed remedy of revision, the petitioners may not be allowed to maintain the present petition, which has been filed in the garb of Section 482 of the Cr. P.C. 6. Besides hearing learned counsel for the parties, I have also examined the materials available on record. He submits that once against order of learned Magistrate, the petitioner had availed remedy of revision, the petitioners may not be allowed to maintain the present petition, which has been filed in the garb of Section 482 of the Cr. P.C. 6. Besides hearing learned counsel for the parties, I have also examined the materials available on record. Fact remains that though the F.I.R. was lodged for offences under Sections 341, 323, 324, 379/34 of I.P.C., which were to be tried as warrant case, but during investigation, offences under Sections 324 and 379 I.P.C. were not found true and police submitted charge-sheet under Sections 323, 341 & 34 of the I.P.C., which are the offences to be tried as summons case. Once case had proceeded as summons case, the petition filed for summoning doctor was itself sufficient to draw an inference that such petition was filed to fill-up the lacuna of the prosecution case. Moreover, once on the same issue, the learned Magistrate had passed a reasoned order and dismissed the prayer for summoning doctor or summoning report, subsequently the learned Magistrate was not at all authorized to entertain the same prayer and pass order in favour of prosecution. The act of the learned Magistrate was completely barred under Section 362 of the Cr. P.C. The learned Sessions Judge had rejected the revision petition filed by petitioners on the plea that in earlier petition, name of doctor was not mentioned and in subsequent petition, name was mentioned and he treated it as changed circumstances. This appears to be not sustainable in the eye of law. 7. In view of the fact that earlier on the same issue, the learned Magistrate had rejected the petition filed by the prosecution, at subsequent stage, he had committed error in allowing the petition. Moreover, keeping in view the nature of accusation, which was triable as summons case, no purpose would have been served in summoning a doctor or it can be said that by making a prayer for summoning a doctor, the prosecution had tried to fill up lacuna of the prosecution case, which is not permissible under Section 311 of the Cr. P.C. Moreover, in view of the judgment of this Court i.e. Nesar Ahmed’s case (supra), under Section 311 of the Cr. P.C., the learned Magistrate was not at all authorized to summon document. 8. P.C. Moreover, in view of the judgment of this Court i.e. Nesar Ahmed’s case (supra), under Section 311 of the Cr. P.C., the learned Magistrate was not at all authorized to summon document. 8. In view of the facts and circumstances, there is no reason to approve either of the orders. Accordingly, order dated 30-06-2009 passed by learned Sessions Judge, Saran at Chapra in Cr. Revision No. 190 of 2009 and order dated 11-06-2009 passed by Sri Prabhat Krishna, learned Judicial Magistrate 2nd Class, Chapra in Trial No. 182 of 2009 are, hereby, set aside. 9. The petition stands allowed.