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Kamroon Khatoon vs State Of Bihar & Anr on 12 September, 2018

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
Patna High Court Cr.M isc. No.4018 of 2016 dt.12-09-2018

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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
Patna High Court Cr.M isc. No.4018 of 2016 dt.12-09-2018

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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.

Patna High Court Cr.M isc. No.4018 of 2016 dt.12-09-2018

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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
Patna High Court Cr.M isc. No.4018 of 2016 dt.12-09-2018

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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.

Patna High Court Cr.M isc. No.4018 of 2016 dt.12-09-2018

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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

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