Dismissed

Sushil Mishra v. the State of Bihar and Anr.

Patna HC10 Jan 2013CR. MISC./2061/2012

Case brief

AI extract

What is this about?

Single judge order dismissing a criminal miscellaneous petition challenging a Sessions Judge's order modifying charges from IPC 363 to 366. The court held second revision barred but found no merit in challenging factual inferences regarding the offense. Petitioner allowed to raise issue at charge framing stage.

What did the court decide?

Petition dismissed with liberty to raise issue at the stage of framing of the charge.

Sushil Mishra Vs the State of Bihar and Anr. — Criminal Trial and Appeal | Patna HC (2013)

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Patna High Court Cr.Misc. No.2061 of 2012 (4) dt.10-01-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.2061 of 2012 ====================================================== Sushil Mishra, @ Sushil kumar Mishra, son of Late Brahmdev Mishra, Resident of Village Bali, Police Station- Dumra, District- Sitamarhi. .... .... Petitioner. Versus 1. The State of Bihar. 2. Dharmendra Dwivedi, son of Kauleshwar Dwivedi, resident of Bakharchandiha, Police Station- Purnahia, District- Sheohar. .... .... Opposite Parties. ====================================================== Appearance : For the Petitioner/s : Mr. For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 4 10-01-2013 Heard learned counsel for the petitioner and learned counsel for the State. This is a petition for quashing the order dated 18. 11. 2011 passed by learned District & Sessions Judge, Sitamarhi, in Criminal Revision No. 123 of 2011 by which the District & Sessions Judge has ordered that “order taking cognizance is not very material as only prima facie case is taken into consideration and the evidence is not meticulously examined at this stage. “The learned Magistrate has misconstrued the factual matrix of this case and has mistakenly observed that no offence under Section 366 I.P.C. is made out. It appears that in this case the allegation is for kidnapping of the wife of the complainant and not a minor girl and as such prima facie offence under Section 366 I.P.C. is made out and not under Section 363 I.P.C. No doubt, cognizance of the

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Patna High Court Cr.Misc. No.2061 of 2012 (4) dt.10-01-2013

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offence on the basis of material available on record is taken out on account of the aforesaid discrepancy in the impugned order, certain modification therein was warranted”.

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A complaint petition was filed alleging therein that accused no. 1 and 2 at the point of pistol kidnapped the wife of complainant by Tempo and threatened to kill if any person make hulla. On the complaint petition the complainant as well as witnesses were examined for offence under Section 200 and 202 I.P.C. The learned Magistrate by order dated 12.07.2011, ordered to issue summon after taking cognizance for offence under Sections 341, 342, 363 and 379/34 of the Indian Penal Code and no offence under Sections 366 and 120 I.P.c. is made out.

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The petitioner challenged the order dated 12.07.2011 of issuance of process after taking cognizance under Sections 341, 342, 363 and 379/34 I.P.C. against the petitioner before the Sessions Judge. Learned Sessions Judge after taking into consideration the fact dismissed the revision petition with an observation that mentioning particular Section in order taking cognizance is not material as the learned Magistrate has mistakenly observed that for offence under Section 366 I.P.C. is not made out. As the allegation is for kidnapping the wife of complainant who is not minor, hence Section 366 I.P.C. is

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Patna High Court Cr.Misc. No.2061 of 2012 (4) dt.10-01-2013

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applicable.

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Learned counsel for the petitioner however has challenged the order of the Sessions Judge alleging therein that learned Sessions Judge has no jurisdiction to substitute Section 366 I.P.C. in place of Section 363 I.P.C. if he found any illegality he may have either conducted the enquiry or may have directed the court below to further enquire into the matter and then pass order.

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It has been submitted that there is no mentioned on the material on record that said kidnapping has occurred with intention to force the victim to marry or for having illicit intercourse or seduced illicit intercourse. The order of the Sessions Judge mentioned that learned Magistrate has misconstrued the factual matrix of this case and has mistakenly observed that offence under Section 366 I.P.C. is made out. Hence the order passed by the Sessions Judge is not sustainable.

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Perused the record and considering the submission on behalf of the petitioner I found that there is no merit in the submission. This revision has been preferred by the petitioner against the order dated 18. 11. 2011 passed by Sessions Judge, Sitamarhi, by which process order to be issued after taking cognizance. The second revision is barred under Section 397(2) I.P.C. However, the grievance of the petitioner that by the

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Patna High Court Cr.Misc. No.2061 of 2012 (4) dt.10-01-2013

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impugned order the Sessions Judge while rejecting the revision petition observed that offence under Section 366 I.P.C. is made out. However, the grievance of the petitioner is of trival nature which does not effect the interest of justice to be interfere with in the extra ordinary jurisdiction for offence under Section 482 I.PC. Since the order taking cognizance after considering the fact that did not warrant to quash the order as prima facie case made out the observation that since the offence is with regard to wife of complainant who is an adult and not minor, hence rightly observed that learned Magistrate make a mistake of factual matrix and hence modification is warranted. Hence I did not find any reason to interfere with the impugned order on the ground that there is no allegation that the kidnapping is for marriage or illegal intercourse which can well be inferred.

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Hence I do not agree with the submission of the learned counsel for the petitioner that prima facie offence under 366 I.P.C. is made out. Hence I do not find any merit in this petition, accordingly, this petition is dismissed with a liberty that the petitioner may raise the issue at the stage of framing of the charge.

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(Gopal Prasad, J)

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m.p.

Sushil Mishra v. the State of Bihar and Anr.

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Sushil Mishra v. the State of Bihar and Anr.

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