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Babu Nandan Sah And Ors vs The State Of Bihar on 25 February, 2020

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.420 of 2018
Arising Out of PS. Case No.-100 Year-2011 Thana- BARGAINIA District- Sitamarhi

1. Babu Nandan Sah S/o Late Ram Shevak Sah.

2. Shyam Chandra Goyal, S/o Babu Nandan Sah.

3. Kashi Devi, W/o Babu Nandan Sah, All residence of Village- Purandaha
Rajwara, P.S.- Sonbarsa, District- Sitamarhi.

4. Umesh Kumar Alok, S/o Rajendra Prasad Alok @ Rajendra Prasad.

5. Pratibha Kumari, W/o Umesh Kumar Alok, Both residence of Village-

Kanhma, P.S.- Bela, District- Sitamarhi.

… … Petitioners
Versus

1. The State of Bihar

2. Gargi Kumari, D/O Girdhari Prasad, At+P.O.- Bairgania, P.S.- Bairgania,
Dist.-Sitamarhi.

… … Respondents

Appearance :

For the Petitioner/s : Mr.Prasoon Sinha, Advocate
For the Respondent/s : Mr.Sri Ram Bilash Roy Raman, A.P.P.

For the O.Ps. : Mr. Ashhar Musfata, Advocate
Mr. Abu Nasar, Advocate

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date : 25-02-2020
Heard learned counsel for the petitioners and learned

counsel representing opposite party no. 2.

The matter has been heard at length.

This revision application has been preferred for setting

aside the judgment dated 08.03.2018 passed in Cr. Appeal No. 39

of 2017/18 of 2017 by which the learned Fast Track Court-II,

Sitamarhi has been pleased to set aside the judgment dated

08.05.2017 passed by S.D.J.M. Sadar, Sitamarhi in G.R. Case No.

1045 of 2011, Trial No. 1345 of 2017 as well as the order of
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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sentence dated 09.05.2017 passed by learned Chief Judicial

Magistrate, Sitamarhi in the said case.

The facts of the case are not much in dispute. Pursuant

to the lodgment of Bairganiya P.S. Case No. 100 of 2011 for the

offences alleged under Section 498A/34 of the Indian Penal Code

and Section 3 and 4 of Dowry Prohibition Act, a charge-sheet was

filed against the three accused persons out of five. Charge was

framed against those three but in course of trial the other two

accused were also summoned under Section 319 Cr.P.C. In this

way all the five accused stood trial.

The learned S.D.J.M. after recording the evidences

found the accused persons guilty and convicted them for the

offences under Section 498A/34 of the Indian Penal Code and

Section 3 and 4 of the Dowry Prohibition Act. While hearing

learned counsel for the accused on the point of sentence, the

learned S.D.J.M. took a view that the offence committed by the

accused are of very serious nature and the materials available on

the record are such that severe punishments should be awarded to

the accused persons but because the learned S.D.J.M. could have

passed only an order of sentence of imprisonment for a term not

exceeding three years or fine exceeding Rs. 10,000/- or both, the

records of the case were transferred to the court of learned C.J.M.,
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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Sitamarhi in terms of Section 325 (1) of the Code of Criminal

Procedure.

After passing of the judgment dated 08.05.2017 when

the learned S.D.J.M., Sadar, Sitamarhi sent the records of the case

to the court of learned Chief Judicial Magistrate, Sitamarhi, a

hearing was given to the accused persons on the point of sentence

on 09.05.2017. The learned C.J.M. passed order of sentence

whereunder all the five accused persons were sentenced under

Section 3 of the Dowry Prohibition Act to undergo simple

imprisonment of five years. They were also held liable to pay the

dowry amount in proportion so each of the accused were sentenced

to fine of Rs. 1,02,200/-. In default to pay fine they were directed

to undergo further simple imprisonment for six months. All the

five accused were also convicted under Section 4 of the Dowry

Prohibition Act and under this provision they were sentenced to

undergo simple imprisonment of one year with a fine of Rs.

5,000/- each. Further under Section 498A/34 of the Indian Penal

Code all the five accused persons were sentenced to undergo

simple imprisonment of three years with fine of Rs. 500/- each. All

the sentences were to run concurrently and the period already

served by the accused persons during trial were liable to be set

off.

Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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The accused-petitioners preferred criminal appeal giving

rise to Cr. Appeal No. 39 of 2017/18 of 2017 in the court of

learned Fast Track Court-II, Sitamarhi. The appellants-petitioners

challenged the judgment of conviction dated 8th May, 2017 passed

by learned S.D.J.M. Sadar, Sitamarhi as well as the order of

sentence dated 9th May, 2017 passed by learned C.J.M., Sitamarhi.

For purpose of setting aside of the judgment of

conviction and the opinion of guilt recorded by the learned

S.D.J.M., the appellants-petitioners argued before the learned

appellate court that no separate charge under Section 3 and 4 of the

Dowry Prohibition Act was framed and only by framing a joint

charge under Section ¾ of the Dowry Prohibition Act, the guilt of

the accused persons against the charged Sections were taken to be

proved. The appellants-petitioners also argued before the appellate

court that there were huge discrepancies with respect to the

amount of dowry and the amount of dowry mentioned in the

charge is totally different from the sentence passed under the

Dowry Prohibition Act by learned C.J.M. It was further argued on

their behalf that the statement of the accused under Section 313

Cr.P.C. records a sum of Rs. 3,00,000/- but the judgment passed is

for a sum of Rs. 5,11,000/- which has been proportionately made

payable to each of the appellants-petitioners. The appellants thus,
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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assailed the judgment of the learned S.D.J.M. by which the

opinion as to guilt was recorded and it was termed as a judgment

of conviction as well the order of sentence passed by learned

C.J.M. Before the learned appellate court while challenging the

judgment of conviction/opinion as to guilt as well as the order of

sentence the appellants also relied upon the judgment which are

dully mentioned in paragraph 3 of the appellate court’s judgment

and are recorded hereunder for a ready reference:-

“In support of above mentioned submission some
decisions of Hon’ble Courts are referred, which are
as follows:

(1) PLJR 1998, vol. 03, page 789, para 6,8,9 14.
(2) SCC 2014, vol. 10, page 270, para 7(IV), 9, 10
14, And,
(3) Criminal Appeal No. 56 of 2002 of Our High
Court (Kaushal Kishore Rai versus State of Bihar)
para 10.

From above submissions and references it has been
claimed on behalf of the appellants that the
impugned judgment of conviction and order of
sentence is fit to be set aside.”

The learned Fast Track Court-II, Sitamarhi accepted the

submissions of the appellants, found error in the matter of framing

of charge by the learned trying Magistrate, took a view that the

charge under Section 3 and 4 of the Dowry Prohibition Act should

have been framed separately with separate substance to signify the

expression. The appellate court also took a view that the statement

under Section 313 Cr.P.C. suffered from defects of the alleged

amount of dowry and expressed disclosure of the substance of the
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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demand of payment of the alleged dowry amount. It was

specifically held that the learned S.D.J.M. has not followed the

provisions of Section 325(2) Cr.P.C. and the learned C.J.M. has

failed to follow Sub section (3) of Section 325 Cr.P.C. while

passing the order of sentence.

In ultimate analysis, the learned appellate court,

therefore, accepted the submissions of the appellants, held both the

judgment and sentence illegal and after setting aside those

judgment and sentence passed by learned S.D.J.M. and learned

C.J.M. respectively, the learned appellate court remitted the matter

to the court of learned S.D.J.M. Sadar, Sitamarhi for modification

of the substance of the charges and the statements under Section

313 Cr.P.C. as per evidence appearing on record.

Being aggrieved by the order of the learned appellate

court in the present revision application learned counsel

representing the petitioners submits that so far as the order setting

aside the judgment dated 08.05.2017 passed by the learned

S.D.J.M. and the order dated 09.05.2017 passed by learned C.J.M.

are concerned, the petitioners are not challenging that part of the

order.

Learned counsel for the petitioners submits that in the

present revision application the petitioners are aggrieved by the
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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order passed by the learned appellate court whereby the learned

appellate court has remitted the matter to the court of learned

S.D.J.M. Sadar, Sitamarhi. In his submissions, the learned

appellate court should have remitted the matter to the court of

learned Chief Judicial Magistrate, Sitamarhi and not to the court of

learned S.D.J.M., Sitamarhi and this is the matter of grievance for

the petitioners.

Mr. Prasoon Sinha, learned counsel representing the

petitioners has strongly argued before this Court that the judgment

of conviction recorded by learned S.D.J.M. was nothing but an

opinion as to the guilt of the accused persons and once the records

were transferred under Sub section (1) of Section 325 Cr.P.C. to

the court of learned C.J.M., Sitamarhi, by virtue of Sub section (3)

of Section 325 Cr.P.C. the learned C.J.M. was fully competent to

take any further evidence in the matter and even the statements of

the accused under Section 313 Cr.P.C. could have been recorded

afresh by learned C.J.M. and he could have passed a judgment and

order of sentence based on the materials available on the record.

Learned counsel submits that once the appellate court

found that the order passed by learned C.J.M. suffered from certain

legal infirmities, the appellate court should have set aside the order

of the learned C.J.M. and at this stage itself the records could have
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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been sent back to the court of learned C.J.M. In fact, Mr. Sinha has

argued that even though the appellants had challenged the

judgment of the learned S.D.J.M., Sitamarhi, it was not incumbent

upon the learned appellate court to accept the submissions of the

appellants to set aside the judgment of the learned S.D.J.M. and

learned counsel has submitted before this Court that in its

revisional jurisdiction, this Court can very well with the aid of

Section 386(d) and (e) Cr.P.C. consider the propriety of the

judgment of the learned appellate court and modify it to the extent

required.

Heavily relying upon the judgment of the Hon’ble

Division Bench of this Court in the case of State of Bihar vs. Gita

Nand Jha reported in 1998 (3) PLJR 787, Mr. Sinha has drawn

the attention of this Court towards the observations of the Court in

paragraph 6 of the said judgment. It has been reiterated that the

judgment of conviction recorded by learned S.D.J.M. was to be

taken as a mere opinion formed by learned C.J.M. and thus

learned C.J.M. could have proceeded to take further evidence if

found necessary and could have formed his own judgment on the

basis of the materials available on the record.
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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Mr. Ashhar Mustafa, learned counsel representing the

opposite party no. 2 has with equal vehemence opposed this

application.

Learned counsel has taken this Court through the

scheme of Section 325 Cr.P.C. It is his submission that formation

of an opinion as to guilt of the accused persons based on the

materials available on the record before the trying Magistrate is a

condition precedent for invoking Sub section (1) of Section 325

Cr.P.C. It is submitted that once the trying Magistrate forms an

opinion that there are evidences on the record showing that the

guilt against the accused persons are proved beyond reasonable

doubts, only after forming such opinion he can transfer the records

to the court of learned C.J.M. for the reasons as required in terms

of Sub section (1) of Section 325 Cr.P.C.

In this case, it is submitted that these petitioners had

preferred the appeal before the learned Fast Track Court-II and

they had challenged the judgment of the learned S.D.J.M. in

which he had recorded his opinion as to the guilt of the accused

persons. Learned counsel submits that no doubt the learned

S.D.J.M. has recorded the word “convicted” but in view of the

judgment of this Court such use of words and expressions are only

misnomer and are to be necessarily seen in the light of judicial
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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pronouncements on the subject to mean and understand that it was

nothing more than a mere expression of opinion as to guilt of the

accused persons.

Learned counsel submits that no doubt after the records

are transferred to the court of learned C.J.M., in view of Sub

section (3) of Section 325 Cr.P.C. the learned C.J.M. is fully

competent to receive further evidences and proceed to pass a

judgment and sentence in the matter but in this case when the

records were transferred to the court of learned C.J.M., the

accused-petitioners never requested the learned C.J.M. to record

any further evidence and they participated in the hearing of

sentence whereafter the learned C.J.M. passed the order of

sentence on 09.05.2017. When the challenge was made to the

judgment of the learned S.D.J.M. and the subsequent sentence

awarded by the learned C.J.M. on the ground that very formation

of opinion as to guilt of the accused are not well founded inasmuch

as the charges under Section 3 and 4 of the Dowry Prohibition Act

were not separately framed and the charges were not dully proved

in terms of their ingredients and further that the incriminating

material against the accused persons were not brought to the notice

of the accused while recording their statements under Section 313

Cr.P.C., the learned appellate court accepted the submission of the
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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accused, set aside the judgment of the learned S.D.J.M. and the

subsequent order of sentence passed by learned C.J.M. It is

submitted that in these circumstances it is not open to the

appellants to move this Court in this revision application

contending that even though they had challenged the judgment of

the learned S.D.J.M. in appeal and had argued against that but the

learned appellate court should not have interfered with that

judgment and only by setting aside the order of learned C.J.M.,

the matter could have been remitted to the court of learned C.J.M.

This, in the opinion of the learned counsel would amount to

probate and reprobate in judicial proceedings which would not be

permissible.

Learned counsel has further distinguished the facts of

the present case from that of those in the judgment of the Hon’ble

Division Bench of this Court in the case of Gita Nand Jha (supra)

and submits that the question which had fallen for consideration

before the Hon’ble Division Bench in the said case were limited to

the interpretation of Sub section (3) of Section 325 Cr.P.C. as to

whether after transfer of the records of the case, the learned C.J.M.

could have recorded further evidence and could have passed a

judgment and order of sentence without being influenced by the

opinion as to the guilt of the accused persons formed by the
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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learned Magistrate. Such is not the question under consideration in

the present case.

Consideration

Having heard learned counsel for the parties and upon

perusal of the records, this Court finds much substance in the

submissions of learned counsel for the opposite party no. 2.

It is not in dispute that the learned S.D.J.M., Sitamarhi

had formed an opinion as to the guilt of the accused persons and

thereafter, he had transferred the records to the court of learned

C.J.M., Sitamarhi as he was of the opinion that the accused

persons are required to be awarded with severe punishments for

which the learned C.J.M. is only competent in view of Section 29

Cr.P.C. It is also not in dispute that before the learned C.J.M., no

application was filed on behalf of the accused persons requesting

him to take further evidence. The accused persons participated in

hearing on the point of sentence and the learned C.J.M. passed an

order of sentence as stated above.

It is only thereafter, these petitioners went in appeal

before the learned appellate court and challenged both the

judgment of the learned S.D.J.M., Sitamarhi as well as the order of

sentence passed by the learned C.J.M., Sitamarhi. There are ample

materials reflected in the judgment of the learned appellate court to
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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take a view that the opinion formed by learned S.D.J.M., Sitamarhi

was assailed on various grounds including that those opinion were

not formed on proper framing of charges and further that the

statement under Section 313 Cr.P.C. of the accused persons were

also not duly recorded by pointing out the incriminating materials

available against them. If these were the grounds taken to assail

the opinion formed by the learned S.D.J.M. which was no doubt

incorrectly expressed as ‘conviction’ and the learned appellate

court accepted those submissions of the appellants, set-aside the

judgment of the learned S.D.J.M. and the subsequent order of

sentence passed by the learned C.J.M. and then remitted the matter

to the court of learned S.D.J.M., this Court finds no reason to take

a view that the learned appellate court has committed any illegality

much less any perversity in passing of the impugned judgment.

Section 325 Cr.P.C. reads as under:

“325. Procedure when Magistrate can not pass sentence
sufficiently severe.- (1) Whenever a Magistrate is of
opinion, after hearing the evidence for the prosecution and
the accused, that the accused is guilty, and that he ought to
receive a punishment different in kind from, or more severe
than, that which such Magistrate is empowered to inflict, or,
being a Magistrate of the second class, is of opinion that the
accused ought to be required to execute a bond under
section 106, he may record the opinion and submit his
proceedings, and forward the accused, to the Chief Judicial
Magistrate to whom he is subordinate.

Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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(2)When more accused than one are being tried together,
and the Magistrate considers it necessary to proceed under
Sub-Section (1), in regard to any of such accused, he shall
forward all the accused, who are in his opinion guilty, to the
Chief Judicial Magistrate.

(3) The Chief Judicial Magistrate to whom the proceedings
are submitted may, if he thinks fit, examine the parties and
recall and examine any witness who has already given
evidence in the case and may call for and take any further
evidence, and shall pass such judgment, sentence or order
in the case as he thinks fit, and as is according to law.”

In the case of Gita Nand Jha (supra), the Hon’ble

Division Bench of this court was considering the solitary question

as to the scope and ambit of Section 325 Cr.P.C. and the question

which had fallen for consideration before the Hon’ble Division

Bench is reflected in paragraph ‘4’ of the said judgment which is

taken note of hereunder:

“4. Answer to the question referred to the Division Bench
depends upon the interpretation of the provision of Section
325 of the Code…….”

Having discussed the relevant laws the Hon’ble Division

Bench of this Court in the case of Gita Nand Jha (supra) in

paragraph ‘6’ of its judgment held :

“6. Thus, it is clear that so far the referring Magistrate in
concerned, he is not required to deliver the judgment in
terms of Section 354 of the Code. He has only to form an
opinion about the guilt and record his opinion and thereafter
will submit the proceedings to the Chief Judicial
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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Magistrate. In other words, he has not to convict the
accused. Only after recording of his opinion he has to send
the records to the Chief Judicial Magistrate, who will
finally dispose of the matter in terms of Section 325(3) of
the Code. If the referring Magistrate instead of only-
forming an opinion proceeds further and convicts the
accused and send the records only for awarding the
sentence the same does not make any difference. Recording
of conviction is only a surplusage which amounts to only an
irregularity and that does not in any way affect or control
the power of the Chief Judicial Magistrate to whom the
matter is referred in terms of the aforesaid provision to pass
an order in terms of Section 325 of the Code.”

To this court, it appears that so far as the proposition of

law laid down by the Hon’ble Division Bench of this Court in the

case of Gita Nand Jha (supra) are concerned, it is well settled but

then the judgment of the Hon’ble Division Bench has to be seen in

the facts of a particular case. It has been held by the Hon’ble Apex

Court in the case of Bharat Petroleum Corporation Ltd. and

Anr. Vs. N.R. Vairamani Others reported in (2004) 8 SCC

579 that the judgments/observations of the Court should not be

cited like euclid’s theorems because a slight change in the facts of

the case makes a sea difference in the judgment of the court.

In this case, where this Court finds indisputed position is

that the petitioners had challenged the order of the learned

S.D.J.M. and got success in the same as the learned appellate court
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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set-aside the said judgment, at this stage they cannot be allowed to

take a plea that the learned appellate court should not have set-

aside that judgment and only by setting aside the judgment of the

learned C.J.M., the appellate court should have remitted the matter

to the court of learned C.J.M. for fresh consideration. Such plea

would not be available to the petitioners before this Court.

This Court is also of the considered opinion that to

exercise it’s power under sub-section (3) of Section 325 Cr.P.C. the

learned C.J.M. must have a record which has been transferred to

the court of learned C.J.M. by the learned Judicial Magistrate after

forming an opinion in terms of sub-section (1) of Section 325

Cr.P.C. Thus formation of opinion is a condition precedent.

In this case the learned appellate court was fully aware

of this situation that once the judgment of learned S.D.J.M. is set-

aside, the opinion earlier formed by him also vanishes and nothing

remains on the records to send the files to the court of learned

Chief Judicial Magistrate. It for this reason the learned appellate

court is right in remitting the matter to the court of learned

S.D.J.M.

This Court has been informed that after the remand was

made separate charges under Sections 3 and 4 of the Dowry

Prohibition Act have been framed and 5 witnesses have been
Patna High Court CR. REV. No.420 of 2018 dt.25-02-2020
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examined and thereafter the case is pending for evidence of the

Investigating Officer.

In the facts and circumstances and in view of the

discussions made hereinabove, this Court finds no ground to

interfere with the impugned judgment.

This revision application has no merit. It is dismissed

accordingly.

(Rajeev Ranjan Prasad, J)
vats/-

AFR/NAFR AFR
CAV DATE
Uploading Date 27.02.2020
Transmission Date 27.02.2020

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