Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.25832 of 2008 ====================================================== Most.Kanchan Kuwar @ Kanchan Devi wife of late Dinesh Chandra Prasad, resident of village Surhaiaya, P.S. Sidhwalia, District Gopalganj. .... .... Petitioner/s Versus 1. The State of Bihar. 2. Krishan Murari Prasad Srivastav, Son of late Udai Prasad. 3. Bijendra Prasad Son of Krishan Murari Prasad. 4. Manorma Devi wife of Krishan Murari Prasad. 5. Mina Devi Wife of Krishan Murari Prasad. 6. Alka Devi daughter of krishan Murari Prasad. All residents of village Surhaiaya, P.S. Sidhwalia, district Gopalganj. .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 7 25-04-2012 Heard learned counsel for the petitioner, Shri Umesh Lal Verma, learned counsel, who has appeared on behalf of opposite party no.1/State and Shri Akhileshwar Prasad Singh, learned Senior Cousnel, who was assisted by Shri Mritunjay Prasad Singh, learned counsel for opposite party nos.2 to 6. The petitioner, who is complainant in Complaint Case No.2521 of 2007/T.R. No.2869 of 2008, has approached this Court, while invoking its inherent jurisdiction under Section Patna High Court Cr.Misc. No.25832 of 2008 (7) dt.25-04-2012 2 / 7 2 482 of the Code of Criminal Procedure with a prayer to set aside the order dated 11.6.2008 passed by Shri Vipul Sinha, learned Judicial Magistrate, Gopalganj in Complaint Case No.2521 of 2007/T.R. No.2869 of 2008, whereby the learned Magistrate, after conducting enquiry and finding no ground for proceeding, has rejected the protest- cum-complaint petition. Short fact of the case is that on an allegation that husband of the informant was assaulted by opposite party nos.2 to 6 the opposite party no.2 gave his fardbeyan before the police on 25.3.2007. Thereafter, an F.I.R. vide Barauli P.S. Case No.46 of 2007 was registered on the same day for the offence under [STATUTE] arraying opposite party nos.2 to 6 as accused. However, after investigating the case, the police Patna High Court Cr.Misc. No.25832 of 2008 (7) dt.25-04-2012 3 / 7 3 was of the opinion that case was false and as such final report was submitted on 23.7.2007. While investigation was going on, the informant filed a protest petition on 2.4.2007 before the learned Magistrate. After submission of final report, the learned Magistrate accepted the same and proceeded on protest petition treating the same as complaint petition. After conducting enquiry, the learned Magistrate, by the impugned order, has rejected the complaint petition under Section 203 of the Code of Criminal Procedure. Learned counsel for the petitioner, while assailing the impugned order, submits that in the complaint petition as well as during enquiry, witnesses had supported the case of complainant to show that the husband of the deceased died due to assault made by the accused persons. It was submitted Patna High Court Cr.Misc. No.25832 of 2008 (7) dt.25-04-2012 4 / 7 4 that there was specific allegation that at the time of occurrence, opposite party no.2 had pushed the husband of the complainant through Lathi on his chest and thereafter, he fell down and died at the spot itself. He submits that postmortem examination report has also corroborated the allegation, in view of the fact that spleen and intestine were found ruptured. Only on the ground that there was no external injury on the dead body of the deceased, the learned Magistrate disbelieved the case of the complainant and rejected the same. Shri Akhileshwar Prasad Singh, learned Senior Counsel for opposite party nos.2 to 6 extraneously opposed the prayer of the petitioner. He submits that the falsity of the allegation was firstly found during investigation by a statutory agency and since the allegation was found false, final report Patna High Court Cr.Misc. No.25832 of 2008 (7) dt.25-04-2012 5 / 7 5 was submitted. He further submits that in the complaint as well as during enquiry, the witnesses had asserted that the deceased was assaulted by Lathi by accused persons, but during examination by the Medical officer, no external injury was found on the person of the deceased and as such the learned Magistrate, while considering the fact in totality, has disbelieved the complaint case and rightly rejected the complaint petition under Section 203 of the Code of Criminal Procedure. According to Shri Singh, the order impugned requires no interference. Besides hearing learned counsel for the parties, I have also perused materials available on record. There was specific case of the complainant that the deceased was pushed by “Lathi” by the accused persons. Only on the ground of non availability of any external Patna High Court Cr.Misc. No.25832 of 2008 (7) dt.25-04-2012 6 / 7 6 injury on the person of the deceased, the learned Magistrate was not required to summarily reject the complaint petition. There is possibility that such incident there may not be any external injury, but fact remains that spleen and intestine were found ruptured, which was noticed by the Medical officer. In view of the fact that there were other materials also on record, the learned Magistrate was required to examine entire materials and thereafter, he would have passed order. The court is of the opinion that the order impugned requires interference. Accordingly, the order dated 11.6.2008 passed in Complaint Case No.2521 of 2007/T.R. No.2869 of 2008, whereby complaint case was rejected by learned Judicial Magistrate, Gopalganj is hereby set aside and matter is remitted back to the court below for Patna High Court Cr.Misc. No.25832 of 2008 (7) dt.25-04-2012 7 / 7 7 examining the record and pass order afresh in accordance with law. It goes without saying that while proceeding, the learned Magistrate may not take into account any opinion or observation of this Court. The learned Magistrate would be at liberty t

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.