Priyanka Kumari @ Priyanka vs The State Of Bihar
2023 Latest Caselaw 5425 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
             CRIMINAL MISCELLANEOUS No.1283 of 2022
      Arising Out of PS. Case No.-103 Year-2020 Thana- PIRBAHOR District- Patna
======================================================

Priyanka Kumari @ Priyanka Wife of Sri Arvind Kumar @ Arvind Resident of Mahavir Lane, Mussalahpur, Police Station - Pirbahore, District - Patna (Bihar).

... ... Petitioner/s Versus The State Of Bihar

... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. Saket Gupta, Advocate For the Opposite Party/s : Mr. Anil Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA CAV JUDGMENT Date : 19.10.2023

Heard Mr. Saket Gupta, learned counsel for the

petitioner and Mr. Anil Kumar, learned A.P.P. for the State.

2. This application under Section 482 of the Code of

Criminal Procedure has been filed by the petitioner for quashing

the order dated 20.11.2021 passed in Criminal Revision No. 250

of 2021 by the learned District and Sessions Judge, Patna by

which he has dismissed the criminal revision application, which

was filed against the order dated 30.05.2020 passed by learned

Chief Judicial Magistrate, Patna in Pirbahore P.S. Case No. 103

of 2020 by which cognizance of the offences under Sections

302, 120B and 34 of the Indian Penal Code and Section 27 of

the Arms Act has been taken against the petitioner.

3. The aforesaid Pirbahore P.S. Case No. 103 of 2020 Patna High Court CR. MISC. No.1283 of 2022 dt. 19-10-2023

was instituted on 17.02.2020 in respect of an occurrence of the

offence which took place on the same date on the basis of

written report of one Shivendra Kumar Shivam, who is the son

of the deceased, namely, Late Dhirendra Kumar Akela. In his

written report he alleges that there was a passage dispute

between the informant's family and the family of the petitioner

and earlier also all the accused persons have threatened to kill

the father of the informant. It is further alleged that the

petitioner along with other accused persons hatched a

conspiracy and killed the father of the informant.

4. That on the statement of the son of the deceased,

the F.I.R was instituted and investigation was taken up. After

investigation, the police has submitted Final Form No. 80 of

2020 dated 12.05.2020, stating therein that co-accused persons

namely, Suraj Kumar, Chandan Kumar @ Khujli @ Machli @

Dalla, Aman Kumar and Akhilesh @ Chedi have been charge

sheeted under Sections 302, 120B and 34 of the Indian Penal

Code and Section 27 of the Arms Act. The police further stated

in the aforesaid charge sheet that the petitioner and other co-

accused persons namely, Sujit Mehta, Chhotu Sao, Brajendra

Kumar Sinha @ Brijendra Kumar Sinha, Jaywanti Devi @

Jayanti Devi, Prity Bharti @ Preeti Bharti @ Priti Kumari @ Patna High Court CR. MISC. No.1283 of 2022 dt. 19-10-2023

Preeti, Chandan Kumar @ Chandan and Arvind Kumar @

Arvind, no evidence was gathered during investigation

implicating the role of this petitioner or the case to be false. The

learned Chief Judicial Magistrate, Patna differing with the

police report took cognizance by an order dated 30.05.2020 of

the offences punishable under Sections 302, 120B and 34 of the

Indian Penal Code and Section 27 of the Arms Act.

5. The petitioner has subsequently challenged the order

dated 30.05.2020 passed by the learned Chief Judicial

Magistrate, Patna before the learned District and Sessions

Judge, Patna in Criminal Revision No. 250 of 2021, the said

order dated 20.11.2021 passed in Criminal Revision No. 250 of

2021 is under challenged in the present application.

6. Learned counsel for the petitioner assailing the

impugned order submitted that the petitioner is innocent and has

been falsely implicated in the present case due to admitted

property dispute and no material has come during investigation

which remotely suggest that the petitioner was involved in the

present crime in question. The revision order is bad in law on

the ground that the same did not take into consideration the fact

that no case under Sections 302, 120B and 34 of the Indian

Penal Code and Section 27 of the Arms Act was made out Patna High Court CR. MISC. No.1283 of 2022 dt. 19-10-2023

against this petitioner in the investigation and the learned Chief

Judicial Magistrate while differing with the police report has

passed a mechanical order and the revisional Court also erred in

law by mechanically rejecting the application which is order

impugned in the present quashing application.

7. On the other hand Mr. Anil Kumar, learned

Additional Public Prosecutor appearing on behalf of the State

submitted that no reason is required to be recorded at the time of

taking cognizance by Court of Chief Judicial Magistrate. If the

Magistrate has found sufficient prima facie material to

summons the accused as would reflected from the order

impugned, no illegality can be found with the order. He further

submits that though the present application has been filed under

Section 482 of the Cr.P.C. the same is in the nature of the second

revision, which is barred under Section 397 (3) of the Cr.P.C. He

relies upon the judgment of the Hon'ble Supreme Court in the

case of Rajan Kumar Machnanda vs. State of Karnataka

reported in 1990 (Supplementary) SCC Page 132, in the said

case, the Hon'ble Supreme Court, after recording the facts, had

observed that the second revision did not lie at the instance of

the State in the High Court in view of the provision of 397(3) of

the Cr.P.C.

Patna High Court CR. MISC. No.1283 of 2022 dt. 19-10-2023

8. Obviously, to avoid this bar, the application moved

by the State before the High Court was stated to be under

Section 482 of the Cr.P.C., asking for exercise of inherent

powers. In exercise of that power, the High Court has reversed

the order of the Magistrate as affirmed by the Sessions Judge.

The question for consideration is to whether the bar under

Section 397(3) of the Cr.P.C. should have been taken note of to

reject the revision at the instance of the State Government or

action taken by the High Court in exercise of its inherent power

has to be sustained. It is not disputed by the learned counsel

appearing for the State that the move before the High Court was

really an application for revision of the order of the Magistrate

releasing the truck. That is exactly what is prohibited under

Section 397(3) of the Cr.P.C. Merely while saying that the

jurisdiction of the High Court was exercised of its inherent

power was being involved, the statutory bar could not have been

over come. If that was to be permitted, every revision

application facing the bar of Section 397(3) of the Cr.P.C. could

be levelled as one under Section 482 of the Cr.P.C. We are

satisfied that this is the case where the High Court had no

jurisdiction to entertain the revision.

9. Learned APP further submits that when a quashing Patna High Court CR. MISC. No.1283 of 2022 dt. 19-10-2023

application is filed challenging the order of the revision passed

by the Sessions judge, in that event, this Court has to be

cautious and circumspect, for the reason that the application

under Section 482 of the Cr.P.C. is basically a second revision

which is barred under Section 397(3) of the Cr.P.C, but then

fairly submits that from perusal of the revisional order of the

Court comes to the conclusion that the reason assigned in the

revisional order is bordering on perversity or from perusal of the

impugned, there appears to be serious miscarriage of justice or

legal provisions were ignored, then this Court, in order to secure

the ends of justice, can interfere in exercise of its inherent power

under Section 482 of the Cr.P.C., and thus, relies on the

judgment of the Supreme Court in the case of Madhu Limaye

vs. State of Maharashtra reported in 1997 (4) SCC Page 551.

He further submits that the language of Section 397 of the

Cr.P.C. is clear and there is no ambiguity. It is next submitted

that an aggrieved can prefer a Criminal Revision under Section

397(1) of the Cr.P.C. either before the this Court or before the

Court of the learned Sessions Judge and thus, it can be safely

argued that once an aggrieved had availed the remedy before the

learned Sessions Judge, then he is precluded from the

approaching the another forum in terms of Section 397 of the Patna High Court CR. MISC. No.1283 of 2022 dt. 19-10-2023

Cr.P.C.

10. Learned Additional Public Prosecutor also submits

that since Section 482 of the Cr.P.C. starts with an non obstante

clause that would mean merely on account of the fact that the

person has preferred a revision in a Sessions Court, he need not

be debarred from assailing the order before the High Court

under Section 482 of the Cr.P.C.. In order to prevent abuse of

the process of law and to secure the ends of justice what in

absence of such preposition, as recorded herein above,

application under Section 482 cannot be entertained.

11. Learned Additional Public Prosecutor further

submitted that the Hon'ble Supreme Court in the case of Manju

Ram Kalita vs. State of Assam reported in 2009 (13) SCC

Page 313 at para 10 has observed "it is settled legal proposition

that if the Courts below had recorded the findings of fact, the

question of re-appreciation of the evidence by the third Court

does or not arise unless it is found to be totally perverse".

12. Learned Additional Public Prosecutor submits that

from perusal of the order impugned it manifest that the learned

Revisional Court, by placing reliance on the facts of the case has

come to the considered conclusion that the order taking

cognizance of the offences under Sections 302, 120B and 34 of Patna High Court CR. MISC. No.1283 of 2022 dt. 19-10-2023

the Indian Penal Code and Section 27 of the Arms Act against

these petitioner by the learned Chief Judicial Magistrate did not

call for any interference.

13. Considering the submissions made by the learned

Additional Public Prosecutor, this Court is not inclined to

entertain this quashing application.

14. In the result, this quashing application stands

rejected.

15. Prayer is refused.

(Rajesh Kumar Verma, J) Vanisha/-

AFR/NAFR                NAFR
CAV DATE                08.12.2022
Uploading Date          19.10.2023
Transmission Date       19.10.2023