Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.887 of 2009 ====================================================== Jiwaso Devi W/o Sudama Choudhary, R/o village- Khairahi, P.S.- Koran Sarai, District- Buxar .... .... Petitioner/s Versus 1. The State of Bihar 2. Janardan Choudhary S/o Mahagu Choudhary (deleted vide Order dated 23.8.2011) 3. Jitendra Choudhary S/o Mahagu Choudhary 4. Ram Pravesh Choudhary S/o Mahagu Choudhary 5. Kapilmuni Choudhary S/o Harihar Choudhary, All R/o village- Khairahi, P.S. –Koran Sarai, District- Buxar .... .... Opposite Parties/s ====================================================== Appearance : For the Petitioner/s : Mr. Satyapal Singh, Advocate For the O.P. Nos. 3 to 5 : Mr. Ansul, Advocate For the State of Bihar : Mr. Umanath Mishra, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 7 04-12-2012 Heard the parties. The petitioner, being aggrieved by the order dated 18.3.2009 passed in Complaint Case No. 1078 of 2008, arising out of G.R No. 1135 of 2007/ Tr. No. 737 of 2008, by the learned Judicial Magistrate, 1st Class, Buxar dismissing the aforesaid petition of complaint filed by the petitioner in exercise of his powers under section 203 Cr.P.C., has preferred the present revision application under sections 397 and 401 of the Code of Criminal Procedure, 1973 questioning the correctness, validity and propriety of the impugned order. Learned counsel for the petitioner submits that Patna High Court CR. REV. No.887 of 2009 (7) dt.04-12-2012 2/5 originally the petitioner filed Complaint Case No. 1025 (C ) of 2007 before the learned Chief Judicial Magistrate, Buxar in which opposite party nos. 2 to 4 were arrayed in the category of accused. However, the learned Chief Judicial Magistrate, Buxar in exercise of his powers under section 156 (3) Cr.P.C. sent the aforesaid petition of complaint to the local police with a direction to register a case and submit final form after investigation. Accordingly, Koran Sarai P.S. Case No.31 of 2007 dated 12.9.2007 corresponding to G.R. No. 1135 of 2007 under [STATUTE] . was instituted and investigation was taken up by the police. However, on close of investigation, police submitted final report dated 13.4.2008 ‘as false’. Learned counsel for the petitioner submits that since the police was not recording the statements of the witnesses correctly, and the police had gone in collusion with the accused persons, therefore, the petitioner had already filed a protest petition in the form of complaint petition dated 1.11.2007 (Annexure-2). On submission of final report vide Annexue-6, the same was accepted by the learned Magistrate, but the protest petition filed on behalf of the petitioner was treated as a complaint petition, giving rise to Complaint Case No. 1078 of 2008. It is the case of the petitioner that during the course of Patna High Court CR. REV. No.887 of 2009 (7) dt.04-12-2012 3/5 enquiry under section 202 Cr.P.C. four witnesses were produced in support of the prosecution case. Their depositions have been brought on record as Annexure-4 series. According to the learned counsel, without considering the statements of witnesses recorded under section 202 Cr.P.C., the learned Judicial Magistrate, 1st Class, Buxar has dismissed the aforesaid complaint petition by the impugned order by taking into consideration the probable defence of the accused persons. It is submitted that the learned Judicial Magistrate, while passing the impugned order, has exceeded his jurisdiction. Learned counsel appearing on behalf of the accused- opposite parties has opposed the prayer made in the present revision application and has supported the impugned order dismissing the complaint petition. It is submitted that if there is bleak chance of conviction of the accused persons, then the court may not issue process in terms of section 204 Cr.P.C. In support of his above contention he has placed reliance on a judgment of the Hon’ble Apex Court in the case of Madhavrao Jiwaji Rao vs. Smbhajirao Chandrojirao Angre (AIR 1988 SC 709). After having heard the parties, this Court is of the opinion that the matter requires reconsideration by the learned Magistrate. Apparently, while passing the impugned order, Patna High Court CR. REV. No.887 of 2009 (7) dt.04-12-2012 4/5 dismissing the petition of complaint filed on behalf of the petitioner in terms of section 203 Cr.P.C., the learned Magistrate has not taken into consideration the statements of the witnesses recorded under section 202 Cr.P.C. At that stage, the learned Magistrate was required to find out only as to whether a prima facie case is made out against the accused persons for issuance of the process in terms of section 204 Cr.P.C., and nothing beyond. Even for, exercising powers under section 203 Cr.P.C., the learned Magistrate could not have taken into consideration the probable defence of the accused persons. That being the legal position, the impugned order suffers from jurisdictional error. The judgment cited by the learned counsel for the accused-opposite parties can not salvage the impugned order from being illegal. Hon’ble Supreme Court while passing the aforesaid judgment was considering the scheme, scope and mandate of section 482 Cr.P.C. The scheme, scope and mandate of section 203 Cr.P.C. was not under consideration before the Hon’ble Apex Court in the aforesaid case. For the reasons recorded above, the impugned order dated 18.3.2009 passed by the learned Judicial Magistrate, 1st Class, Buxar in Complaint Case No. 1078 of 2008 is hereby set aside and the matter is remitted back to the learned Judicial Patna High Court CR. REV. No.887 of 2009 (7) dt.04-12-2012 5/5 Magistrate, 1st Class, Buxar for passing a fresh order strictly in accordance with law. Since the matter has already been delayed, it is expected that after receipt/production of copy of the present order, the learn

Applicable IPC Section: 511

Statute Text:
Section 511 of the Indian Penal Code. Attempting to commit offences punishable with imprisonment for life, or imprisonment, and in such attempt doing any act towards the commission of the offence. Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.