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2014 DIGILAW 38 (PAT)

Arvind Kumar Sinha v. State of Bihar

2014-01-09

RAKESH KUMAR

body2014
Order Heard Sri Avanish Kumar Singh, learned counsel for petitioners, learned Addl. Public Prosecutor as well as Sri K.N. Diwakar, learned counsel appearing on behalf of complainant/opp. party no. 2. 2. Three petitioners, who are in-laws family members of complainant/opp. party no. 2, have approached this Court, with a prayer to quash an order dated 07-05-2010 passed by learned Sub Divisional Judicial Magistrate, East Muzaffarpur (hereinafter referred to as “S.D.J.M.”) in Complaint Case No. 2609(C) of 2005, Trial No. 906 of 2010. By the said order, learned S.D.J.M. had allowed the prayer of opp. party no. 2 for adding the petitioners as accused and face trial with accused, who was already put on trial. 3. Short fact of the case is that the complainant/opp. party no. 2 had earlier filed a complaint case , vide Complaint Case No. 2609(C) of 2005 for the offence under Section 498(A) and sections 3 & 4 of the Dowry Prohibition Act, 1961 against her husband namely Major Ranjit Soni Sinha and others including petitioners. However, during course of inquiry, learned S.D.J.M. was of the opinion that no offence was made out against any of the accused persons, save and except, husband of the complainant and thereafter, order of cognizance was passed on 06-01-2006 and only husband was summoned to face trial. During trial, after examination of four witnesses, a prayer was made on behalf of opp. party no. 2 for summoning present petitioners also to face trial with the main accused, which has been allowed by learned S.D.J.M., Muzaffarpur. The same order has been impugned in the present petition. 4. Learned counsel for petitioners, besides raising other pleas, has raised an issue that once the petitioners were made accused in the complaint petition and after thorough inquiry, learned S.D.J.M. had found no material to take cognizance against petitioners, the learned S.D.J.M., at the stage, during trial under Section 319 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”), was not at all empowered to add the same persons as accused, who were already exonerated from facing trial earlier. He has categorically stated that Section 319 of the Cr.P.C. shows that only those persons can be summoned who are not accused in the case. He has categorically stated that Section 319 of the Cr.P.C. shows that only those persons can be summoned who are not accused in the case. Besides this issue, learned counsel for petitioners has further argued that though cognizance order in the complaint petition was passed only against husband of the complainant, the husband had subsequently assailed the order of cognizance before this Court by filing a quashing application, vide Cr. Misc No. 9454 of 2009 and a bench of this Court by its order dated 10-01-2013 was pleased to allow the quashing application and quashed the order of cognizance against the husband (Annexure ‘8’ to the Supplementary Affidavit). He further submits that this Court, while quashing the order of cognizance in case of husband of the complainant, had noticed the point of cruelty caused on complainant itself was examined in a matrimonial case i.e. Matrimonial Case no. 153/05 and in the matrimonial case, issues, framed on the point of cruelty, were decided against the complainant and the said fact was also noticed by this Court and considering all these facts, this Court by its order dated 10-01-2013 had quashed the order of cognizance. Learned counsel for petitioners submits that since the order of cognizance in respect of main accused i.e. husband of the complainant has already been quashed and complaint case had come to an end in respect of only one accused, who was facing trial, there is no question for allowing the complainant to add petitioners to face trial alongwith the accused who was already facing trial. He submits that main trial has already come to an end and as such, impugned order is required to be quashed. 5. Sri K.N. Diwakar, learned counsel appearing on behalf of complainant/opp. party no. 2 has vehemently opposed the prayer of the petitioners. He submits that earlier in case of refusal to take cognizance against other accused persons, the complainant/opp. party no. 2 had approached this Court by filing Cr. Revision No. 167 of 2006, which was disposed of on 07-12-2006 (Annexure ‘3’). However, while disposing of the same, this Court had indicated that during the trial under Section 319 of the Cr.P.C., if sufficient materials come, the learned court below would be entitled to summon the accused persons and as such, he submits that in view of order of this Court passed in aforesaid Cr. However, while disposing of the same, this Court had indicated that during the trial under Section 319 of the Cr.P.C., if sufficient materials come, the learned court below would be entitled to summon the accused persons and as such, he submits that in view of order of this Court passed in aforesaid Cr. Revision case, the learned S.D.J.M. has exercised power by summoning the petitioners to be added as accused and has committed no error. 6. Besides hearing learned counsel for the parties I have also perused the materials available on record. So far as Annexure ‘3’ is concerned, it is true that observation was given by this Court that if material comes, power can be exercised under Section 319 of the Cr.P.C. for summoning accused persons, but merely observation of this Court in Cr. Rev. No. 167 of 2006 was not enough for authorizing learned S.D.J.M. to summon the petitioners to face trial, who were already exonerated after enquiry. 7. In view of the fact that petitioners were already accused in Complaint Case No. 2609(C) of 2005 and they were already exonerated and no cognizance order was passed against them, in view of Section 319 of the Cr.P.C. the learned S.D.J.M. was not authorized to summon the petitioners. Moreover, it is not disputed that though, in the complaint petition, number of persons were made accused, cognizance order was passed only in respect of husband of the complainant and at subsequent stage, the order of cognizance in respect of husband of the complainant has already been set aside by this Court, vide Annexure ‘8’ to the supplementary affidavit. 8. In view of the facts and circumstances, the Court is of the opinion that learned S.D.J.M. has committed error in passing the impugned order for adding the petitioners to be accused in the case. Moreover, in view of the fact that the main case i.e. case against husband of the complainant has already come to an end, no purpose would be served in allowing the impugned order to sustain. 9. Accordingly, impugned order i.e. order dated 07-05-2010 passed by learned Sub Divisional Judicial Magistrate, East Muzaffarpur in Complaint Case No. 2609 (C) of 2005, Trial No. 906 of 2010 is, hereby, set aside. 10. The petition stands allowed.