Tuesday, March 19, 2024

Patna High Court sets aside order of Sessions Judge, Darbhanga, Order of Additional Chief Judicial Magistrate-VIth, Darbhanga revived

In Bardhan Kumar Sah v State of Bihar, the Patna High Court did not find "any legality, validity or propriety in the order passed by the learned Sessions Judge, Darbhanga". It set aside its order and revived the order of Additional Chief Judicial Magistrate (A.C.J.M.)-VIth, Darbhanga passed on July 30, 2018. The Criminal Revision petition arose out of P.S. Case No.-528 Year-2018,  Darbhanga. The criminal revision has been allowed on contest.

The petitioner is the complainant of C.R. No. 528 of 2018 pending before the learned Chief Judicial Magistrate, Darbhanga. It is alleged by the complainant that on May 9, 2018, the accused persons, namely, Ganga Purbey, Suman Purbey, Ram Nath Purabey, Rimjhim Devi and Deo Narayan Sahu committed trespass into the shop of the complainant and directed him to give vacant position of the shop stating interalia that they purchased the land over which the shop was situated by a registered deed of conveyors. The complainant purchased the land prior to the accused persons and he constructed a shop there on and carries on a business of gold and silver ornaments in the said shop. 

The petitioner/complainant alleges that on May 10, 2018, the accused persons trespassed into his shop, committed mischief by causing damage to the articles and furniture of the said shop. They also broke down a railing constructed by the mason on the first floor of the said shop. They pulled the complainant, put a gamcha around his neck and pulled him down. The complainant fell down and sustained injury on his knees. One of the accused persons took away a gold chain from his neck. They also took away cash money from his pocket. 

The order records that other witnesses specifically stated that Deo Narayan Sahu, the fifth accused was along with other accused persons and he also took specific part in committing mischief and assault to the complainant. The fifth accused is the opposite party (O.P) No. 2 in the High Court.

The Magistrate found that the complainant has been able to make out a case against all the accused persons and took cognizance of offence under Sections 341/ 323/ 327/ 420/ 467/468/ 471/ 386/ 427/ 504/ 120B/ 452 and 380 of the I.P.C. 

The accused Deo Narayan Sahu moved before the Sessions Judge, Darbhanga in Cr. Rev. No. 426 of 2018 challenging the order of taking cognizance. The Sessions Judge firstly held on the basis of the submissions made by the Advocate on behalf of the accused/petitioner that real dispute between the parties relates to ownership of the subject land on which the shop room in question was constructed. Therefore, the nature of dispute is essentially civil in nature. The Sessions Judge also held that the complainant made an omnibus allegation against the petitioner and other witnesses did not specifically state the name of Deo Narayan Sahu in committing the offence. Therefore, the Sessions Judge set aside the order dated July 30, 2018 regarding taking of cognizance in respect of Deo Narayan Sahu and the revisional application was allowed.

The petitioner/complainant approached High Court against this order of the Sessions Judge, Darbhanga.

The High Court observed that the order passed by the Sessions Judge found allegation against Deo Narayan Sahu as groundless because his role in committing the offence was not specifically stated by the complainant. It further observed that the word groundless means that “there must be no ground for presuming that the accused has committed the offence”. The word groundless means that “materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused.” 

The Court observed that "at the time of taking cognizance, the Court is required to see that a very strong suspicion founded upon materials before the Magistrate, which needs in to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged. This presumptive opinion may justify the Trial Court to take cognizance against the accused persons. The word suspicion referred to by this Court must be founded upon materials placed before the Magistrate which needs same to form a presumptive opinion as to the existence of factual ingredients constituting the offence alleged. Therefore, the words “a very strong suspicion” used by this Court must not be a strong suspicion of a vacillating mind of a Judge. That suspicion must be founded upon the materials placed before the Magistrate which needs same to form a presumptive opinion about the existence of factual ingredients constituting the offence alleged."

The High Court's judgement has recorded that the complainant had stated that all the accused persons came to his shop on May 9, 2018 and May 11, 2018 and committed the offence cognizance of which was
taken by the learned A.C.J.M.-VIth, Darbhanga. The other witnesses specifically stated the name of the Deo Narayan Sahu. In such a backdrop, Justice Bibek Chaudhuri concluded that 'I do not find any reason, as to why the learned Sessions Judge, Darbhanga executed (excused) O.P. No. 2 from the array of the accused persons. It is needless to say that at the time of taking cognizance of offence, only the statement of the witnesses, an inquiry report under Section 202 of the Cr.P.C. shall be taken into consideration. In the instant case, the Chief Judicial Magistrate, Darbhanga took into consideration the statement of the witnesses and found the O.P. No. 2 equally liable to face trial." As a result, the High Court upheld the reasoned order of Chief Judicial Magistrate, Darbhanga which it found to be based on  legality, validity and propriety, unlike the order by the Sessions Judge, Darbhanga. 


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