Kumarjee Jha S/O Bauajee Jha vs The State Of Bihar

This application under Section 482 of the Code of

Criminal Procedure (for short '' Cr.P.C .'') has been filed by the

petitioners for quashing of the order dated 14.08.2013 passed by the

learned 3rd Additional Sessions Judge, Madhubani in Cr. Revision

No. 753 of 2012 by which the revision petition filed by the petitioners

against the order dated 01.10.2012 passed by the learned Chief

Judicial Magistrate, Madhubani in Babu Barhi P.S.Case No. 63 of

2012 has been dismissed.

By the aforesaid order dated 01.10.2012, the learned

Chief Judicial Magistrate had taken cognizance of the offence

punishable under Sections 147, 341, 323 and 504 of the Indian Penal

Code against the petitioners and summoned them to face trial

differing with the police report submitted under Section 173(2) of the

Cr.P.C.

Initially the informant had filed a complaint case in the

court of Chief Judicial Magistrate, Madhubani on 27.03.2012 vide

Complaint Case No. 383 of 2012 against the petitioners, which was

sent to the police under Section 156(3) of the Cr.P.C. for

investigation pursuant to which Babu Barhi P.S.Case No. 63 of 2012

was registered on 10.04.2012 for the offences punishable under

Sections 147, 148, 149, 120-B, 323, 341, 324, 379, 380 and 452 / 34 of

the Indian Penal Code.

It is alleged in the complaint that on 21.03.2012 while

the complainant was cutting bamboo standing on his land, the

accused Kumarjee Jha forbade him to do so. When the complainant

stated that the bamboo in question was standing on his land, the

accused Kumarjee Jha started abusing him and thereafter all the

accused persons being variously armed entered into his house, abused

and assaulted him mercilessly whereafter his son Prasannji Jha

intervened, who was also assaulted by them. When Suman Kumar Jha

and Amar Kumar Jha came to the rescue of the son of the

complainant, they were also assaulted by the accused persons. It is

further alleged that all the accused persons conspired together,

entered into his house and damaged several household articles. The

complainant alleged that when he went to the police station for

institution of FIR, the written statement was not received whereafter

he sent the substance of accusation to the Superintendent of Police

also by registered post but no FIR was registered.

After the aforesaid complaint was sent to the police for

investigation, the Investigating Officer recorded the statements of

several witnesses under Section 161(3) of Cr.P.C. and on completion

of investigation he came to the conclusion that a false accusation was

made against the accused persons. Accordingly, the Investigating

Officer submitted his report under Section 173(2) of the Cr.P.C. vide

Final Report No. 95 of 2012 dated 31.05.2012 in the court of the

Chief Judicial Magistrate, Madhubani.

A perusal of the police report would make it evident that

the Investigating Officer had made a separate report to the court of

Chief Judicial Magistrate for initiating a proceeding under Sections

182 and 211 of the Indian Penal Code for launching false prosecution

against the accused petitioners.

On perusal of the materials available in the case diary

and the police report, the learned Chief Judicial Magistrate vide order

dated 01.10.2012 took cognizance of the offence against the accused

persons and summoned them to face trial.

The aforesaid order dated 01.10.2012 was challenged by

the petitioners in revision before the court of Sessions vide Cr.

Revision No. 753 of 2012. However, the said revision application has

also been dismissed vide impugned order dated 14.08.2013 holding

that there is no irregularity or impropriety in the order passed by the

learned Chief Judicial Magistrate.

Being aggrieved by the aforesaid order dated

14.08.2013, the petitioners have preferred the present application

under Section 482 of the Cr.P.C.

It is contended on behalf of the petitioners that the court

of Magistrate and the Sessions court have failed to appreciate the

materials collected during investigation. It is contended that there was

no material on record on the basis of which the learned Chief Judicial

Magistrate could have differed with the police report submitted under

Section 173(2) of the Cr.P.C.

Per contra, learned counsel for the informant submitted

that the instant application under Section 482 of the Cr.P.C. would

not be maintainable as it amounts to second revision which is barred

under Section 397(3) of the Cr.P.C.. He submitted that the learned

Chief Judicial Magistrate has not exceeded his jurisdiction in

differing with the police report rather it is always open for the

Magistrate either to agree with the police report or to differ with it on

the basis of materials available on record. He contended that the

revisional court has rightly dismissed the revision application filed by

the petitioners and there is no other legal ground available to the

petitioners on the basis of which the present application can be

allowed.

Dr. Mayanand Jha, learned Additional Public Prosecutor

appearing for the State, after going through the case diary, submitted

that apart from the informant no other witness had supported the case

of the prosecution in course of investigation. He contended that the

final report was submitted by the police on the basis of statements of

several witnesses recorded during investigation, who all had stated

that the instant case has been launched in retaliation to Babu Barhi

P.S.Case No. 45 of 2012 instituted by one of the accused of the

present case. He contended that the entire prosecution case rests on

the statement of the informant alone.

I have heard learned counsel for the parties and carefully

perused the record including the case diary of Babu Barhi P.S.Case

No. 63 of 2012.

It would be evident from perusal of the order of the

learned Chief Judicial Magistrate that he has differed with the police

report on the basis of statements of witnesses Sudhir Paswan, Sukan

Ram and Ram Prakash Yadav, recorded in paragraphs 6, 8 and 9 of

the case diary. I have scrutinized the statements of these witnesses as

also the statement of one Hari Narayan Yadav and the findings of the

Supervising Officer. I find that in these three paragraphs of the case

diary the witnesses have categorically stated that the instant case had

been instituted in retaliation to Babu Barhi P.S.Case No. 45 of 2012.

They have also stated that the complainant has filed the instant case

in order to defend himself from the aforesaid Babu Barhi P.S.Case

No. 45 of 2012. I further find that though in the FIR the informant has

alleged that the accused persons mercilessly assaulted him and his

family members but there is no medical evidence to support such

allegation in the case diary.

Learned counsel for the State has correctly pointed out

that besides the informant there is no other witness to support the

allegations made in the complaint. Even his family members have not

come forward to support his version.

Under the circumstances noted above, I am of the

opinion that the learned Chief Judicial Magistrate has completely

failed to appreciate the materials on record while summoning the

petitioners to face trial for the offences mentioned above. The order

passed by the learned Chief Judicial Magistrate is erroneous and

perverse as the statements given by witnesses during investigation

exonerating the petitioners have been misinterpreted in order to

summon the petitioners while differing with the police report. In the

opinion of this Court, the revisional court was also not correct in not

interfering with such a perverse order.

So far as the contention of the informant that the present

application under Section 482 of the Cr.P.C. would not be

maintainable is concerned, suffice it to say that the law is well settled

that while exercising inherent jurisdiction of this Court under Section

482 of the Cr.P.C., nothing shall be deemed to limit or affect the

inherent powers of the High Court to make such order as may be

necessary to give effect to any order under Cr.P.C . or to prevent

abuse of the process of the court or otherwise to secure the ends of

justice. The inherent power under Section 482 of the Cr.P.C. is

different from the power of revision under Section 397 of the Cr.P.C.

Therefore, in spite of bar under Section 397(3) of the Cr.P.C. for

second revision, a petition under Section 482 of the Cr.P.C. would be

maintainable in view of the ratio laid down by the Hon''ble Supreme

Court in Krishnan & Anr Vs. Krishnaveni & Anr [(1997) 4 SCC 241

and Madhu Limaye Vs. The State of Maharashtra [(1977) 4 SCC

551].

For the reasons stated above, the impugned order dated

14.08.2013 passed by the learned 3rd Additional Sessions Judge,

Madhubani in Cr. Revision No. 753 of 2012 by which the revision

petition filed by the petitioners against the order dated 01.10.2012

passed by the learned Chief Judicial Magistrate, Madhubani in Babu

Barhi P.S.Case No. 63 of 2012 has been dismissed is set aside.

Consequently, Babu Barhi P.S.Case No. 63 of 2012 and the entire

proceeding arising therefrom are also quashed.

The application stands allowed.