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2015 DIGILAW 795 (JHR)

Shashi Bhushan Prasad v. State of Jharkhand

2015-07-13

D.N.UPADHYAY

body2015
JUDGMENT D.N.Upadhyay, J. 1. This Cr.M.P. has been filed for quashing the order dated 19.12.2012 passed by the learned Sessions Judge in Cr. Appeal No. 232/2012 by which learned Sessions Judge has dismissed the appeal in default. 2. The facts in brief is that the petitioner happens to be accused in C.P. Case No. 1467/2010 lodged by O.P.No.2, who is non else but the wife of the petitioner. O.P.No.2 has levelled allegation of demand of dowry, torture and assault against the petitioner. In the aforesaid case cognizance was taken. It transpires that on 15.10.2011 a petition was filed by the petitioner before the Trial Court for initiating an enquiry under Section 340 of the Cr.P.C. and also for initiating criminal proceeding under Section 195 of the Cr.P.C. against the complainant ( O.P.No.2). 3. It was contended that the witnesses during enquiry have given false statement. The petitioner was not present on the date on which alleged occurrence took place. He is a 'Tour Guide' and he was away from the place of occurrence on the relevant dates. Since the complainant-O.P.No.2 and witnesses examined during enquiry had given false statement, enquiry under Section 340 Cr.P.C. is needed and appropriate complaint is required to be filed against them under sub-section (i) of Section 340 Cr.P.C. 4. The learned Magistrate after granting hearing to the parties by order dated 19.06.2012 rejected the petition dated 15.10.2011 filed by the petitioner. Thereafter the petitioner preferred an appeal under Section 341 of the Cr.P.C. before the learned Sessions Judge vide Cr.Appeal No. 232/12. Since the learned Sessions Judge has dismissed the appeal on default without dealing with the merit of the case, the petitioner has preferred present Cr.M.P. against the order dated 19.12.2012 passed by the learned Sessions Judge in Cr. Appeal No. 232/2012. 5. It is contended that an application for grant of time was filed but no opportunity was given to the petitioner and the learned Sessions Judge dismissed the appeal arbitrarily without considering the merit of the case. Learned Counsel has also referred the grounds taken by him in the petition dated 15.10.2011 filed before the learned Magistrate. He has further submitted that impugned orders are highly erroneous, illegal and arbitrary in nature and, therefore, the same are liable to be dismissed. 6. Counsel for the State has opposed the prayer. 7. Learned Counsel has also referred the grounds taken by him in the petition dated 15.10.2011 filed before the learned Magistrate. He has further submitted that impugned orders are highly erroneous, illegal and arbitrary in nature and, therefore, the same are liable to be dismissed. 6. Counsel for the State has opposed the prayer. 7. I have gone through the orders impugned i.e. order dated 19.06.2012 passed in C.P. Case No. 1467/2012 and order dated 19.12.2012 passed in Cr. Appeal No. 232/12. It is true that the appeal stood dismissed for default but for the reasons assigned. It appears from the order dated 02.8.2012 that there was delay of 4 days in filing the appeal. Notice was directed to be issued against the respondent. After which respondent no.2 appeared on 26.11.2012. The case was called out but no one turned up on behalf of either of the parties. Last opportunity was given and the case was adjourned to 14.12.2012. Appellant though filed attendance on 14.12.2012 but did not appear to argue the matter. When the case was called out no one turned up. Last opportunity again was given to the parties and the case was adjourned to 19.12.2012. On that date petition for seeking time was filed by the appellant but no one turned up. The appeal was also barred by limitation and the delay was not condoned. Considering all these aspect, the appeal stood dismissed vide order dated 19.12.2012 passed in Cr. Appeal No. 232/2012. 8. It was argued that Cr. Appeal cannot be dismissed in limine and opportunity ought to have been granted to the petitioner/appellant to place all his cards. Since the appeal stood dismissed for default, the matter is required to be remanded back after setting aside the order impugned passed by the learned Sessions Judge in Cr. Appeal No. 232/2012. 9. I have gone through the provisions contained in Section 340 and 341 of the Cr.P.C. The remedies which are available to the appellant in regular Cr. Since the appeal stood dismissed for default, the matter is required to be remanded back after setting aside the order impugned passed by the learned Sessions Judge in Cr. Appeal No. 232/2012. 9. I have gone through the provisions contained in Section 340 and 341 of the Cr.P.C. The remedies which are available to the appellant in regular Cr. Appeal is not equal to the remedies available under Section 341 of the Cr.P.C. The considerations which are required to be taken note of are limited in appeal filed under Section 341 of the Cr.P.C. It is true that the petitioner was not heard by the learned Sessions Judge in appeal but it is also taken note of that the appeal was also time barred and the delay was not condoned. Normally in such situation, the matter is remanded back to the court-below for reconsideration and to pass order afresh after granting hearing to the parties. 10. Be that as it may, the issues involved, as well as facts and circumstances available in the case at hand are to be taken note of to avoid delay in trial. The complainant is wife, who was allegedly subjected to torture and treated with cruelty and for redressal of her grievance, she has filed a complaint in the court-below. Her statement on S.A. was recorded. The statement of witnesses during enquiry was also recorded and considering the statements so recorded, the learned Magistrate found prima facie case to proceed against the petitioner. On 15.10.2011 a petition was filed requesting the Court to hold an enquiry under Section 340 Cr.P.C. on the ground that the statement given by the witnesses during enquiry is contradictory and they have not spoken truth. The petitioner has also taken plea of alibi and prayed to the court to hold enquiry about the plea taken. After hearing the parties, the learned Magistrate has passed a reasoned order, which indicates that plea of alibi is to be proved by the person, who has taken the plea and for that enquiry under Section 340 Cr.P.C. is not needed. So far the statement of witnesses recorded during enquiry that has been considered for proceeding further with the trial. After hearing the parties, the learned Magistrate has passed a reasoned order, which indicates that plea of alibi is to be proved by the person, who has taken the plea and for that enquiry under Section 340 Cr.P.C. is not needed. So far the statement of witnesses recorded during enquiry that has been considered for proceeding further with the trial. The procedure is very clear in a complaint case that statement of witnesses recorded during enquiry is being considered for the purpose of passing order either under Section 203 or 204 of the Cr.P.C. Once an order under Section 204 Cr.P.C. has been passed, the accused, who has been directed to face trial, has to appear. In course of trial evidence of witnesses produced by the prosecution and the defence is to be recorded and on the basis of such evidence, judgment is pronounced. Contention appearing from the order dated 19.06.2012 is clear that intention of the petitioner was only to delay the progress of the trial because the grounds taken by him in the petition dated 4. 15.10.2011 do not appear to be matter of enquiry as required under Section 340 of the Cr.P.C. Learned Magistrate has rightly rejected the prayer. I am in agreement with reasoning given by the learned Magistrate and therefore remanding the matter back to the learned Sessions Judge for granting fresh hearing to the parties shall certainly cause delay in disposal of C.P. Case No. 1467/2010. Furthermore the grounds taken by the petitioner in the petition dated 15.10.2011 do not warrant enquiry under Section 340 of the Cr.P.C. 11. In the circumstances stated and discussed above and also to avoid delay in disposal of the case, this Cr.M.P. stands dismissed.