Allowed

Uma Shankar Bhagat and Ors. v. State Of Bihar and Anr.

Patna HC5 Nov 2014CR. MISC./27871/2012

Case brief

AI extract

What is this about?

The Patna High Court in Criminal Miscellaneous No.27871 of 2012 quashed the order dated 22.05.2012 by the Chief Judicial Magistrate, Banka. The order taking cognizance against petitioners under various sections of the IPC was found defective as witnesses did not categorically support money transfer allegations and the remand for a fresh order did not justify a different evidentiary conclusion.

What did the court decide?

The order dated 22.05.2012 impugning the taking of cognizance against the petitioners is quashed.

Uma Shankar Bhagat and Ors. Vs State Of Bihar and Anr. — Criminal Trial and Appeal | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Miscellaneous No.27871 of 2012

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Uma Shankar Bhagat son of Late Badri Narain Bhagat

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Rishi Devi wife of Uma Shankar Bhagat

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Punam Kumari D/o- Umashankar Bhagat

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Santosh Kumar Bhagat son of Late Ram Shankar Bhagat

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All resident of at & P.O. Panjwara, P.S. Panjwara, district Banka presently residing at MIG – 68, Housing Colony, Barari, Bhagalpur, PIN- 812003 .... .... Petitioner/s Versus

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The State of Bihar

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Rakesh Kumar Bhagat son of Gopal Prasad Bhagat resident of village Panjwara, P.S. Panjwara, district –Banka .... .... Opposite Party/s

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Appearance :

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For the Petitioner/s : Mr. B.P. Pandey, Senior Advocate

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Mr. P.K. Sinha, Advocate

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For the Opposite Party/s : Mr. Prahlad Kumar Bhagat, Advocate

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Mr. Jharkhandi Upadhyay, A.P.P.

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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL ORDER

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7 05-11-2014 Heard the parties.

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The petitioners have sought for quashing of the order dated 22.05.2012 passed by the learned Chief Judicial Magistrate, Banka in Complaint Case No. 88 of 2010 whereby cognizance has been taken under Section 403, 418, 506, 323 and 341 of the Indian Penal Code. The petitioners have also sought for quashing

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Patna High Court Cr.Misc. No.27871 of 2012 (7) dt.05-11-2014

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of the order dated 13^th of September, 2011 passed in Criminal Revision No. 213 of 2010 whereby the order of the learned Chief Judicial Magistrate, Banka by which the complaint was dismissed under Section 203 of the Code of Criminal Procedure was set aside and the matter was remitted back to the Court below for writing out a fresh order. However, during the hearing of this application, learned counsel for the petitioners made a prayer to have the prayer portion as well as the first paragraph of the petition deleted so far as it relates to quashing of the aforesaid order passed in criminal revision.

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Initially, a complaint was lodged by opposite party no. 2 with the allegation that the accused persons including the petitioners took money for managing a job which was never provided to the complainant. The money also was not returned. The aforementioned complaint was sent under Section 156 (3) of the Code of Criminal Procedure for instituting a regular case whereby Banka (Panjwara) P.S. Case No. 11 of 2007 dated 11.01.2007 came to be instituted. After a protracted investigation, the police submitted final report “false” and also recommended for initiating prosecution against the opposite party no. 2 under Section 182 & 211 of the I.P.C. However, the protest petition preferred by opposite party no. 2 was treated as complaint and the

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Patna High Court Cr.Misc. No.27871 of 2012 (7) dt.05-11-2014

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same was converted into one as Complaint Case No. 725 of 2009. In the aforementioned complaint, the learned court below, after examining the witnesses offered on behalf of the prosecution and the solemn affirmation of opposite party no. 2, came to the conclusion that no case was made out against the petitioners and, hence, dismissed the complaint under Section 203 of the Cr.P.C. However, a reference was made in the aforesaid order dated 25.05.2010 about the recommendation of the police for prosecution of opposite party no. 2 under Sections 182 and 211 of the Indian Penal Code. By a separate order dated 25.05.2010, the learned Chief Judicial Magistrate took cognizance against the opposite party no. 2 for the offence under Sections 182 and 211 of the Indian Penal Code.

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The complainant challenged such orders before the learned Additional Sessions Judge, IV Banka vide Criminal Revision No. 213 of 2010. The Revisional Court held that no composite order, namely, dismissal of complaint under Section 203 of the Cr.P.C and simultaneously taking cognizance against the complainant (informant) under Sections 182 and 211 of the Indian Penal Code, could be passed. Therefore, the orders were set aside and the matter was remitted back to the court below for writing out a fresh order in accordance with law. Pursuant to such

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Patna High Court Cr.Misc. No.27871 of 2012 (7) dt.05-11-2014

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a remand in the revision application, the learned Chief Judicial Magistrate vide order dated 25.05.2012 took cognizance against the petitioners for the offence under Sections 403, 418, 341, 323 and 506 of the Indian Penal Code.

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Learned counsel for the petitioners submits that no fault was found by the learned Magistrate with respect to the order of dismissal of the complaint under Section 203 of the Cr.P.C. The Revisional Court did not approve the order by which cognizance was taken against the complainant –opposite party no. 2 under Sections 182 and 211 of the Indian Penal Code as the Revisional Court was of the opinion that it was passed simultaneously and therefore, had assumed the character of a composite order. True it is that for taking cognizance under Sections 182 and 211 of the Indian Penal Code certain formalities have to be complied with as referred to under the provision of Section 195 of the Cr.P.C.; Nonetheless, no fault could be found with the order dismissing the complaint under Section 203. The Revisional Court also did not at all adversely commented upon such an order of dismissal of complaint.

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It has further been submitted on behalf of the petitioners that the remittance of the case back to the learned Chief Judicial Magistrate for writing out a fresh order was on an erroneous

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Patna High Court Cr.Misc. No.27871 of 2012 (7) dt.05-11-2014

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assumption that a composite order was passed.

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Be that as it may, since the order taking cognizance as against the complainant under Sections 182 and 211 of the Indian Penal Code was faulted with, the same could have been pointed by the learned Revisional Court. Once the entire case was remitted to the Court below for writing out a fresh order in accordance with law, that amounted to a direction, it has been argued, to the Chief Judicial Magistrate, Banka for taking cognizance against the petitioners. This, it has been submitted, is not in consonance with the provisions of law.

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While perusing the order impugned, namely, 22.05.2012, it would appear that merely because the case was remitted to the Court of Chief Judicial Magistrate for writing out a fresh order, the Court below almost made a somersault with respect to appreciating the allegations in the complaint petition and took cognizance under various sections of the Indian Penal Code as against the petitioners. It further appears from the record that most of the witnesses on behalf of the opposite party no. 2 have not stated categorically that any money was transferred for the purposes of providing job to the complainant-opposite party no. 2. That apart, since the revisional court did not find any fault with the order dismissing the complaint under Section 203,

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Patna High Court Cr.Misc. No.27871 of 2012 (7) dt.05-11-2014

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merely because of the remand of the case, the learned Chief Judicial Magistrate, Banka ought not to have taken a completely different view than what he had taken earlier on the basis of the record available before him. It appears from the record that the allegation of handing over money to the accused persons for the purpose of getting job has not been fully supported by the witnesses.

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Considering these aspects of the matter, the order taking cognizance dated 22.05.2012 is found to be defective. The same is quashed.

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The application stands allowed.

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(Ashutosh Kumar, J)

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Jagdish/-

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U T

Uma Shankar Bhagat and Ors. v. State Of Bihar and Anr.

Case brief

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Uma Shankar Bhagat and Ors. v. State Of Bihar and Anr.

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