IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.4018 of 2016
Arising Out of PS.Case No. -47 Year- 2013 Thana -DESARI District- VAISHALI(HAJIPUR)
KAMROON KHATOON, WIFE OF MD. SAMIM, RESIDENT OF VILLAGE-
JAFRABAD, P.S.-DESARI, DISTRICT- VAISHALI (BIHAR).
…. …. Petitioner/s
Versus
1. THE STATE OF BIHAR.
2. SONA, SON OF ATAHULLAH, RESIDENT OF VILLAGE- JAFRABAD,
P.S.- DESRI, DISTRICT- VAISHALI (BIHAR).
…. …. Opposite Party/s
Appearance :
For the Petitioner/s : Mr. Jagnnath Singh, Advocate
Mr. Rakesh Kumar, Advocate
For the Opposite Party No.1: Mr. Jharkhandi Upadhayya, APP
For the Opposite Party No.2: Mr. Yogesh Chandra Verma, Sr. Advocate with
Mr. Nafisuzzoha, Advocate
CORAM: HONOURABLE MR. JUSTICE SANJAY PRIYA
CAV JUDGMENT
Date: 12-09-2018
This application under Section 482 of the Code of
Criminal Procedure has been filed for quashing the order dated
29.06.2015 passed by the Sessions Judge, Vaishali at Hajipur, in
Criminal Revision No.61 of 2015 by which he has set aside the order
of cognizance dated 28.02.2014 passed by the Chief Judicial
Magistrate, Vaishali at Hajipur, in Desari P.S. Case No.47 of 2013
taking cognizance against Opposite Party No.2 along with other
accused for the offence under Section(s) 376(G)(2) and 120-B Indian
Penal Code.
2. The prosecution case as alleged by the petitioner
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(Informant), Kamroon Khatoon, is that on 20.03.2013, she had gone
to market for purchasing vegetables and at about 06.45 PM while she
was returning home after purchasing vegetables and reached near
bamboo orchard of Kuldeep Singh, she saw Opposite Party No.2
along with Irshad standing there. Opposite Party No.2 told that he
wanted to say something to her at which the Petitioner-Informant
replied that she would not talk with any body. Thereafter, Opposite
Party No.2 along with co-accused, Irshad, caught hold the hand of
the Petitioner-Informant and took her in the wheat field of
Chandeshwar Singh and made her to sit after pressing her mouth.
Thereafter, Chandan Sahani and Vikash Kumar committed rape with
her while Opposite Party No.2 was holding the hand of the
Petitioner-Informant. Chandan Sahani told her not to disclose to any
body, otherwise, he would kill her. The Petitioner-Informant came
back to her home. After arrival of her husband, she narrated the
incident to him. Husband of the Petitioner-Informant informed the
police. Thereafter, police came and fard-e-beyan of the Petitioner-
Informant was recorded.
3. The police after investigation did not sent up
Opposite Party No.2 for trial and submitted charge-sheet against
other accused persons as mentioned in the charge-sheet. The Chief
Judicial Magistrate, Vaishali at Hajipur, by order dated 28.02.2014
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after perusing the allegation in the written report and statement of the
victim recorded under Section 164 Cr. P.C. as well as other materials
available in the case diary has found prima facie case against
Opposite Party No.2 also along with other accused persons against
whom charge-sheet was submitted by the police and took cognizance
for the offence under Section(s) 376(G)(2) and 120-B of the Indian
Penal Code.
4. Opposite Party No.2 challenged the aforesaid
order of the Chief Judicial Magistrate, Vaishali at Hajipur, before the
Sessions Judge, Vaishali, who by order dated 29.06.2015 passed in
Criminal Revision No.61 of 2015, has set aside the order dated
28.02.2014 passed by the Chief Judicial Magistrate, Vaishali at
Hajipur, taking cognizance against Opposite Party No.2.
5. Heard learned counsel for the Petitioner and the
State as well as counsel for the Opposite Party No.2.
6. Counsel for the Petitioner-Informant submits that
the Chief Judicial Magistrate, Vaishali at Hajipur, has passed the
order dated 28.02.2014 after perusing the allegation in the written
report, statement of the victim recorded under Section 164 Cr.P.C. as
well as materials available in the case diary. Learned Magistrate was
competent enough to take cognizance against the non-sent up
accused also.
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7. Counsel for the Opposite Party No.2 submits that
non-sent up accused can be summoned only at the stage of 319 Cr.
P.C. and not at the stage of 190 and 204 Cr.P.C. The police has not
sent up Opposite Party No.2 for trial and submitted charge-sheet
against other accused persons. Learned Chief Judicial Magistrate,
Vaishali at Hajipur, has committed illegality in passing the order
dated 28.02.2014 by which cognizance has been taken against
Opposite Party No.2 also. Learned Sessions Judge has rightly set
aside the order taking cognizance against Opposite Party No.2 in
Criminal Revision No.61 of 2015.
8. Counsel for the Opposite Party No.2 has relied on
the judgment of our own High Court in the case of Hiralal Gupta
Vs. The State of Bihar reported in 2007(2) PLJR 150 and in the case
of Ram Nandan Singh Vs. State of Bihar reported in 2007(2) PLJR
825.
9. On the other hand, counsel for the Petitioner-
Informant has submitted that cognizance against non charge-sheeted
persons can be taken by the Magistrate after differing from the
opinion of the police. Counsel for the Petitioner-Informant has relied
on the judgment of Division Bench of our own High Court in the
case of Janeshwar Singh vs. State of Bihar reported in 2008(3)
PLJR 28.
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10. Having heard counsel for the parties and on
perusal of the impugned order(s) as well as allegation in the fard-e-
beyan, it appears that Petitioner-Informant (prosecutrix) has taken
name of Opposite Party No.2 in the fard-e-beyan leveling allegation
that he caught hold her hand along with other accused, Irshad, and
took her to wheat filed and forcibly got her seated after shutting her
mouth. Thereafter, Chandan Sahani and Vikash Kumar committed
rape with her while this petitioner along with Irshad caught hold her
hand. From the order dated 28.02.2014 passed by the Chief Judicial
Magistrate, Vaishali at Hajipur, it appears that victim girl in her
statement recorded under Section 164 Cr. P.C. has also taken name
of Opposite Party No.2 levelling specific allegation against him as
mentioned in the fard-e-beyan. Statement of the victim recorded
under Section 164 Cr. P. C. has been annexed as Annexure-2.
11. The Hon’ble Supreme Court in the case of Dinesh
Dalmia Vs. CBI reported in (2008) 1 SCC (Cri) 36 has held that
“….even when investigation remains pending against some persons
and offence is shown not to have been made out against some
persons as per the charge-sheet, depending on the nature of the
charge-sheet/police report cognizance may be taken against such
persons as well for which Magistrate has power under Section 190
of Cr.P.C.”
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12. The Hon’ble Supreme Court in another decision
in the case of Minu Kumari Vs. The State of Bihar reported in
(2006) 4 SCC 359 has held that there is no obligation on the
Magistrate to accept the report if he does not agree with the opinion
formed by the police and the power to take cognizance contrary to
opinion of the police is available under Section 190(1) (c) of Cr. P.C.
13. The Division Bench of our own High Court after
relying on the aforesaid judgments of Hon’ble Supreme Court had
held in the case of Janeshwar Singh vs. State of Bihar reported in
2008(3) PLJR 28 that at the stage of cognizance Magistrate can
differ from opinion of the police and proceed against even those
accused who may not have been charge-sheeted by the police.
14. Therefore, this Court is not convinced with the
argument made by the counsel for the Opposite Party No.2 that
learned Magistrate without considering the fact that non-sent up
accused can be summoned only at the stage of 319 Cr. P.C. and not
at the stage of 190 and 204 Cr.P.C. has taken cognizance against the
Opposite Party No.2.
15. There is clear decision of Hon’ble Supreme Court
as well as our own High Court as mentioned above that the
Magistrate at the stage of cognizance could differ from the opinion
of the police and proceed against even those accused, who may not
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have been charge-sheeted in the case.
16. This Court in the instant case on the basis of
allegation in the written report and statement of victim recorded
under Section 164 Cr. P.C. (Anneuxre-2) finds that learned
Magistrate after properly looking into the materials available in the
case diary as well as allegation in the written report has found prima
facie case against Opposite Party No.2 also along with other accused
persons for the offence under Section(s) 376(G)(2) and 120-B Indian
Penal Code.
17. The learned Revisional Court has committed
illegality in setting aside the aforesaid order on the pretext that
prosecution may file a petition under Section 319 Cr.P.C. before the
Trial Court to add the Opposite Party No.2 as an accused in the said
Sessions Trial on the basis of evidence during trial of the case.
18. Therefore, impugned order dated 29.06.2015
passed by the Sessions Judge, Vaishali at Hajipur, in Criminal
Revision No.61 of 2015, is hereby quashed.
19. The order of cognizance dated 28.02.2014 passed
by the Chief Judicial Magistrate, Vaishali at Hajipur, in Desari P.S.
Case No.47 of 2013 taking cognizance against Opposite Party No.2
along with other accused persons for the offence under Section(s)
376(G)(2) and 120-B Indian Penal Code is hereby affirmed.
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20. This application is, accordingly, allowed.
(Sanjay Priya, J)
J.Alam/-
AFR/NAFR AFR
CAV DATE 03-07-2018
Uploading Date 15-09-2018
Transmission 15-09-2018
Date
