Criminal Procedure Code, 1973 – Sections 202 & 203 – Complaint dismissed by Magistrate after 202 enquiry – Remanded by Session Court – Whether further enquiry is necessary before issuing process – Held, complaint was dismissed after full enquiry examining the complainant as well as the witnesses and the Magistrate dismissed the complaint – On revision the Session’s Judge finding that there is material in the record of complaint case and set aside the order and remanded back for further enquiry – Magistrate issued process on the same material is well within jurisdiction as he is not required to go for further enquiry by calling the witness and recorded their statement.
IN THE HIGH COURT OF JUDICATURE AT PATNA
CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
Criminal Miscellaneous No.32150 of 2014
Rakesh Kumar Chadory Vs. State of Bihar
Appearance : For the Petitioners : Mr. Bijay Bhushan Prasad, Adv.; For the Opposite Parries : Mr. Anil Kr.Singh 1(App)
Heard the learned counsel for the petitioners and the State.
This is an application for quashing the order, dated 24.01.2014, passed in Criminal Revision No. 241 of 2013 by the Session’s Judge, Samastipur, confirming the order, dated 14.02.2013, passed by Sri Ravindra Kumar, Judicial Magistrate, 1st Class, Samastipur, in C. R. No. 1860 of 2011 by which he has dismissed the complaint under Section 203 of the Criminal Procedure Code.
The petitioners filed a complaint alleging therein that he is a shop keeper of a shop situated at north of Station of Road in which he used to work as Dry Cleaner. Rakesh Kumar Choudhary, accused no. 1, threatened to remove his shop on which there was verbal altercation on which accused no. 1 of the complaint petition called the other accused 2, 3 and 4 and ordered to assault, then, accused persons started assaulting the complainant. The complainant, then, managed to flee away and entered into his house, then, accused persons entered into the house of complainant and assaulted him and when the wife of the complainant come to his rescue, she was also misbehaved and on protest by complainant, the complainant was dragged out of the house, abused and Rs.5,000/- was snatched from his pocket and, further, snatched golden chain from his neck. The matter was reported to the local Police Station, but, in vain as Rakesh Kumar Choudhary was present at the Police Station from before and at his instance the police instead of lodging the case sent the complainant to jail by lodging false case against him and since then he is in jail. The complainant informed his lawyer from jail and instructed him to file the complaint case, consequently complaint filed under
Sections 323, 324, 379, 354 and 352 of the Penal Code
and 3(x)(iv) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
After filing the complaint, the complainant was examined on solemn affirmation and the witnesses were also examined and, thereafter, the Judicial Magistrate found that there is no material dismissed the complaint under Section 203 of the Criminal Procedure Code by order, dated 15.12.2012.
Thereafter, criminal revision was preferred, bearing Criminal Revision No. 66 of 2013 against the order, dated 15.12.2012, passed by the Judicial Magistrate, 1st Class, Samastipur. The revisional Court allowed the revision on the ground that there is counter case and, further, fact that the complainant has fully supported the prosecution case regarding assault and theft and remanded the case to the Magistrate for further enquiry. The learned Magistrate, after remand of the caseand in the light of the order of the Session’s Judge, dated 07.02.2013, passed in Criminal Revision No. 66 of 2013, perused the complaint, statement of the complainant on solemn affirmation and statement of the witnesses and found that there is prima facie case and took cognizance underSections 323, 324, 379, 354 and 352 of the Penal Code as well as under Section 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, by order, dated 14.02.2013.
Again, revision petition, being Criminal Revision No. 241 of 2013, preferred against the order, dated 14.02.2013, passed by the Judicial Magistrate, 1st Class, Samastipur, in Complaint R. No. 1860 of 2011. The said revision petition was dismissed by order, dated 24.01.2014, holding that there is no illegality in the impugned order, taking cognizance by the Magistrate as the Court after perusing the evidence, available on record, has found prima facie case and has taken cognizance in pursuance of the direction issued by the revisional Court.
The learned counsel for the petitioners has challenged the order of the revisional Court dismissing the revision confirming the order of the Judicial Magistrate taking cognizance on the ground that after the order of remand, dated 07.02.2013, the trial Court without entering into the further enquiry and without recording any further statement of the witnesses, passed the order taking cognizance on the same material of the earlier enquiry, hence, it amounts to review of the earlier order. The criminal Court has no power to review it’s order, hence, the order taking cognizance on same material is not sustainable and has placed reliance on a decision reported in
2012 (2) P.L.J.R., 652 (Vidya Bhushan Pandey Vrs. The State of Bihar)
where it has been held that if a revisional Court remands a case for further enquiry after setting aside the order of dismissal of complaint under Section 203 of the Criminal Procedure Code, then, the learned Magistrate is required to go for further enquiry by calling the witnesses and recording the evidence and then on further enquiry pass order taking into consideration the statement of the witnesses on further enquiry and any order taking cognizance without recording evidence in further enquiry on the basis of same material on which the complaint was dismissed is amount to review of earlier order which can not sustain in law.
The learned counsel for the petitioners, further, contends that the learned Magistrate after remand of the case while ordered for issuing process after taking cognizance did not give any reason for taking cognizance, hence, order taking cognizance suffers from infirmity and has placed reliance on a decision reported in