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2016 DIGILAW 697 (JHR)

Jagdish Narayan v. State of Jharkhand

2016-04-25

RAVI NATH VERMA

body2016
ORDER : The legality and correctness of the order dated 14.08.2015 passed by learned Judicial Magistrate, 1st Class, Hazaribagh in G.R. No. 434 of 2010, arising out of Barhi P.S Case No. 51 of 2010 has been questioned by the petitioners by filing this criminal revision. 2. Bereft of unnecessary details, the facts, which are relevant for proper adjudication of this case, in short, is that at the instance of one Anil Kumar, the aforesaid Case was instituted under Sections 341, 323, 307 and 325/34 I.P.C. with the allegation that at 7.30 a.m. on 12.02.2010, while he along with Kamaldeo Kamal of the same locality went in the house, the accused persons namely Jagdish Narayan, Rajesh Kumar-the younger son of said Jagdish Narayan, the wife of Jagdish Narayan along with other persons entered into his house and dragged them in their house and assaulted them. It is also alleged that several other persons present in the house of the accused persons having lathi and danda in their hands also assaulted the informant and the said Kamaldeo Kamal and they also tried to strangulate the informant with intention to kill him, but on alarm raised by the informant, people of the locality assembled there and saved him as well as Kamaldeo Kamal. 3. It appears from the record that there was a case and counter-case between the parties and counter-case was instituted at the instance of the accused persons bearing Barhi P.S Case No. 50 of 2010. The police after investigation submitted the charge-sheet in the instant case, whereafter the court took cognizance of the offence and similarly in the counter-case also, the charge-sheet was submitted and cognizance was taken. It further appears that at the instance of the present petitioners, a petition was filed in the instant case on 5.11.2014 with prayer to stop the proceedings of this case under Section 258 of the Code till conclusion of counter-case vis-a-vis dismiss the proceedings and discharge the accused persons i.e. petitioners from the charges levelled against them. The Court after hearing the parties and considering the strong prima-facie case available on record rejected the said petition vide order dated 18.3.2015. Subsequently, at the instance of the petitioners, again a petition was filed on 24.4.2015 under the same provision with prayer to stop the proceedings against the accused persons and discharge them. The Court after hearing the parties and considering the strong prima-facie case available on record rejected the said petition vide order dated 18.3.2015. Subsequently, at the instance of the petitioners, again a petition was filed on 24.4.2015 under the same provision with prayer to stop the proceedings against the accused persons and discharge them. The court below after hearing the parties and considering the evidence available on record, the scope of Section 258 of the Code and the fact that earlier a petition with same prayer was rejected vide order dated 18.3.2015, dismissed the petition by order impugned dated 14.8.2015. Hence, this criminal revision. 4. Learned counsel appearing for the petitioners assailing the order impugned as bad in law and perverse seriously contended that the court below without appreciating the scope of section 258 of the Code rejected the prayer and refused to stop the proceeding of the instant case though there is a case and counter-case and the case filed against the petitioners are based on a false information and the instigation of police officers. It was also submitted that the court below wrongly held that the court has no power to review or recall its earlier order passed on 18.3.2015 and since there was a special and compelling circumstance, the learned court below should have exercised his discretion given under Section 258 of the Code. Hence, the order impugned is not sustainable and fit to be set aside. 5. Per-contra, learned counsel representing the State contended that the criminal courts have no power to review its own order or recall the earlier order passed by the same court and the court below rightly refused to stay the proceedings. 6. Before I enter into the veils of submissions of the counsels, a reference of Section 258 of the Code is necessary for the proper appreciation of the issue involved in this case, which reads as follows:- “258. 6. Before I enter into the veils of submissions of the counsels, a reference of Section 258 of the Code is necessary for the proper appreciation of the issue involved in this case, which reads as follows:- “258. Power to stop proceedings in certain cases.-In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.” 7. From mere perusal of the above provision, it would appear that the wordings of the section is very wide and it gives no indication of the circumstances in which it is to be used. Obviously, the provision has to be applied in a very special and compelling or peculiar or unusual circumstances, which make it difficult or impossible to proceed in the normal way. It is no doubt that discretion has been given to the Magistrate to stop the proceedings, if he thinks proper but that discretion has to be exercised sparingly in appropriate cases. In the instant case, earlier the court below had rejected the petition filed by the petitioners for stay of the proceedings but on the same grounds without any new cause of action, the petitioners again filed a petition under Section 258 of the Code with same prayer. 8. In the case John Thomas Vs. Dr. K. Jagadeesan, 2001 (2) JLJR 542 (SC) while considering the scope of Section 258 of the Code the Hon'ble Supreme Court held that Section 258 vivisects only “ summons cases instituted otherwise than on complaints” into two divisions. One division consists of cases in which no evidence of material witnesses was recorded. The section permits the court to acquit the accused prematurely only in those summons cases instituted otherwise than on complaints wherein the evidence of material witnesses was recorded. But the power of court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all. The section permits the court to acquit the accused prematurely only in those summons cases instituted otherwise than on complaints wherein the evidence of material witnesses was recorded. But the power of court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all. The court in paragraph-7 of the said judgment has also held that one of the normal rules in summons cases is that once trial started, it should reach its normal culmination. 9. Obviously, no special circumstance or compelling or peculiar or unusual circumstance has been brought on record or pointed out by the learned counsel for the petitioners to interfere in the order impugned. In my opinion, the Magistrate has rightly exercised his jurisdiction and rejected the prayer finding sufficient evidence on record to proceed against the petitioners. 10. In view of the discussion made above, I find no merit in this criminal revision. Hence, it is dismissed. Revision dismissed.