Back
2012 Supreme(Pat) 1512
IN THE HIGH COURT OF PATNA
BIRENDRA PRASAD VERMA, JJ.
Durgawati Devi, wife of Sri Rup Nath Chaubey, resident of village Lauwari, P.S. Rasulpur, District Saran, Chapra : Petitioner
Versus
The State of Bihar & Ors. Oppositer parties
Criminal Revision No.1046 of 2009 With Interlocutory Application No.1337 of 2009
Decided On : 30-11-2012
For the Petitioner/s:Mr. Ashok Kumar Chaudhary, Advocate Mr. Anil Kumar Tiwary, Advocate
For the State of Bihar : Mr. Uma Nath Mishra, Addl.P.P.
For the Opp. Party nos. 2 to 4 :Mr. Udit Narain Singh, Advocate Mrs. Vandana Singh, Advocate
Proper assessment of materials for the issuance of process and dismissal of the complaint petition under the Code of Criminal Procedure, 1973.
Headnote:
Delay Condonation - Criminal Procedure - Code of Criminal Procedure, 1973 (Cr.P.C) - Sections 397, 401, 202, 203, 204 - The court discussed the jurisdiction of the learned Judicial Magistrate, the consideration of witness statements, and the assessment of materials for issuance of process and dismissal of the complaint petition under the mentioned sections of the Cr.P.C. The court set aside the impugned order and remanded the matter back to the learned Judicial Magistrate for reconsideration and passing a fresh order strictly in accordance with the law.
Fact of the Case:
The petitioner-complainant approached the court questioning the order passed by the learned Judicial Magistrate, which dismissed the complaint case filed on behalf of the petitioner in exercise of his powers under Section 203 of the Code of Criminal Procedure, 1973.
Finding of the Court:
The court found that the learned Magistrate had not correctly and properly assessed the materials available on record for the issuance of process against the accused persons or for the purpose of dismissing the petition of complaint in exercise of his powers under Section 203 Cr.P.C.
Issues: Exceeding jurisdiction by the learned Judicial Magistrate, consideration of witness statements, and assessment of materials for issuance of process and dismissal of the complaint petition.
Ratio Decidendi: The learned Magistrate's findings were contrary to the materials available on the record and contrary to the claim made in the original petition of complaint, leading to the setting aside of the impugned order and remanding the matter back to the learned Judicial Magistrate for reconsideration and passing a fresh order strictly in accordance with the law.
Final Decision: The impugned order dated 1.12.2008 passed by the learned Judicial Magistrate, Siwan, in Complaint Case No. 1265 of 2008 is hereby set aside and the matter is remanded back to the learned Judicial Magistrate, Siwan, for reconsideration of the entire matter and for passing a fresh order strictly in accordance with law.
Re. Interlocutory Application No. 1337 of 2009
After having heard the parties and for the reasons disclosed in this interlocutory application seeking condonation of delay, the delay occurred in filing the main criminal revision application is hereby condoned.
2. Interlocutory application stands disposed of.
Re. Cr. Revision No. 1046 of 2009
3. Heard the parties.
4. The petitioner-complainant, being aggrieved by the order dated 1.12.2008 passed in Complaint Case No. 1265 of 2008 by the learned Judicial Magistrate, Siwan, dismissing the aforesaid complaint case filed on behalf of the petitioner in exercise of his powers under Section 203 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’)., has approached this Court under Sections 397 and 401 of the Cr.P.C., questioning the correctness, validity and propriety of the impugned order.
5. Learned counsel appearing on behalf of the petitioner submits that the learned Judicial Magistrate while passing the impugned order has exceeded his jurisdiction by taking into consideration the prospective defence of the accused persons in the aforesaid complaint case and, therefore, according to him, the impugned order is liable to be set aside by this Court. It is also contended that statements of the witnesses recorded under Section 202 Cr.P.C. have not been taken into consideration by the learned Magistrate for the purpose of finding out a prima facie case and for issuance of process against the accused persons under Section 204 Cr.P.C. In support of his above contentions, he has placed reliance on a judgment of the Hon’ble Apex Court in the matter of Santosh Moolya and Anr. Vs. State of Karnataka [ (2010) 5 SCC 445] as also the judgments of this Court in the case of Md. Faiyaz Alam Vs. The State of Bihar & Ors [2008(3) P.L.J.R. 611] and Tarkeshwar Singh Vs. The State of Bihar & Anr. [2007(1) P.L.J.R. 676]
6. Learned counsel appearing on behalf of the opposite party nos. 2 to 4 has strongly opposed the prayer made on behalf of the petitioner and has supported the impugned order passed by the learned Judicial Magistrate dismissing the complaint petition filed on behalf of the petitioner. According to the learned counsel for the accused opposite parties, on plain perusal of the complaint petition no case of rape, as alleged, is made out against the accused opposite party no.2, and at best it appears to be a case of consent between the petitioner and accused opposite party no.2. Other allegations against the accused persons become doubtful due to belated filing of complaint petition by the petitioner. In support of his above contentions, he has placed reliance on the judgments of the Hon’ble Apex Court in the case of Deelip Singh @ Dilip Kumar Vs. State of Bihar [ ( 2005) 1 SCC 88 ] and Jayanti Rani Pando Vs.State of West Bengal and Anr. [1984(2) CRI.L.J. 1535]
7. After having heard the parties, this Court finds that the entire matter requires reconsideration by the learned Magistrate. It is true that the petitioner originally filed a complaint petition on 31.5.2007. In the petition of complaint, the petitioner admitted that she started living in the temple from May, 2005 at the behest of the accused persons, where she was working as a maid servant and accused opposite party no.2 is said to be Mahanth of that temple. However, in the aforesaid petition of complaint, the petitioner has alleged commission of rape on 3.5.2007 and even thereafter on the assurance given by the opposite party no.2 to marry her. In the petition of complaint, the petitioner has made an allegation of assault on 30.5.2007 against all the accused persons. However, the learned Magistrate while passing the impugned order has not at all considered and discussed the statements/evidence of the witnesses produced on behalf of the petitioner during the course of enquiry in terms of Section 202 Cr.P.C. Not only that, the learned Magistrate has committed an error of record that alleged occurrence of rape had taken pla
