IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.21912 of 2000 ANWAR AZAM, S/O MAULANA SHAMSUL AZAM, R/O VILLAGE- SAKRULLA CHAK, P.S. MOZAHIDPUR, DISTRICT- BHAGALPUR, AT PRESENT MUKAT GUEST HOUSE, 218 PAHARI BHOJLA CHITLI KAWAR, MATEYA MAHAL, JAMA MASJID, DELHI………………………………………..PETITIONER. Versus 1. STATE OF BIHAR 2. JAI PRAKASH DAS, S/O LATE BIPIN CHANDRA DAS, PROPRIETOR- RESHAM SANGAM OF S.B. LANE GOLAGHAT, P.S. KOTWALI, DISTRICT- BHAGALPUR…………………………………OPP. PARTIES. For the petitioner…………..……………….Mr. Ajay Kumar Singh Mr. Subhash Chandra Jha Mr. Sachindra Kumar Tiwari Mrs. Sarita Kumari For the Opp. Party No.2...……………...……..Mr. G. K. Jha (Advocate) Mr. Arvind Kumar Verma (Advocate) For the State………………………………….Indu Bala Pandey (A.P.P.) 4 21-07-2010 1. The sole petitioner while invoking inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure, has prayed for quashing on order dated 30-09-1999 passed in Criminal Revision No. 591 of 1996, by 6th Additional Sessions Judge, Bhagalpur. By the said order, the revisional Court had allowed the revision preferred by opposite party No. 2, which was preferred against the rejection of the complaint petition filed by the opposite party No. 2 (complainant). The complainant’s complaint was rejected by the learned Judicial Magistrate, Bhagalpur vide order dated 5-8- 1996 in case no. 140 C of 1996/ Tr. No. 927 of 1996. Of course, in the present petition specific prayer with respect to quashing of order dated 28-2-2000 passed by Shri Ram Prakash, Judicial Magistrate, Bhagalpur has not made, however, the petitioner has prayed for staying the proceeding of order dated 28-2-2000 passed by the - 2 - Magistrate. At the time of hearing, learned counsel for the petitioner has orally prayed for quashing of order dated 28-2-2000 also. 2. The short fact of the case is that the opposite party No. 2, who was dealing with the handloom clothes in the name and style of Resham Sangam, filed a complaint in the Court of Chief Judicial Magistrate, Bhagalpur vide Complaint Case No. 140 of 1996 disclosing therein that the petitioner had taken clothes for a total amount of Rs. 52098.90, paise on 8-6-1994 with an assurance that within a short period from the date of purchase of the cloth, the amount will be refunded to the complainant. Subsequently, the petitioner on 23-7-1994 returned the cloth worth Rs. 23,805/- to the complainant and the remaining cloth amount of Rs. 28,293.90 paise still remained outstanding. Subsequently, on behalf of the one Badrul Islam the petitioner undertook to pay an amount of Rs. 8,000/- and accordingly the earlier amount which was Rs. 28,293.90 paise increased to a sum of Rs. 36,293.90 paise. It was alleged that the petitioner dishonestly did not refund the outstanding amount to the complainant and finally he refused to do so on 15-12-1995. Thereafter the complainant considered that he was cheated by the petitioner and accordingly, aforesaid complaint petition was filed for offence under Section 420 of the Indian Penal Code. In course of inquiry two witnesses were examined on behalf of the complainant who supported the stand of the complainant. However, the learned Judicial Magistrate, Bhagalpur by its order dated 5-8-1996, dismissed the complaint petition under Section 203 of the Code of Criminal Procedure. - 3 - 3. Aggrieved with the order of rejection of complaint petition by order dated 5-8-1996, the complainant/ opposite party No. 2 preferred a revision vide Criminal Revision No. 591 of 1996 in the Court of 6th Additional Sessions Judge, Bhagalpur and the learned 6th Additional Sessions Judge by its order dated 30-9-1999 allowed the revision petition by way of quashing the order dated 5-8-1996 passed by the learned Magistrate and remitted back the matter to the Court of Magistrate with a direction to make further inquiry into the matter and pass necessary orders in accordance with law. 4. Thereafter, the learned Chief Judicial Magistrate, Bhagalpur by its order dated 28-2-2000 took cognizance of offence under section 420 of Indian Penal Code and directed for summoning the petitioner. 5. Aggrieved with the order of the revisional court as well as proceeding in complaint case No. 140 C of 1996, the petitioner approached this Court by filing the present petition. On 4-9-2001, while issuing notice to opposite party No. 2, this Court directed that in the meanwhile, further proceeding in the case pending before the Court below shall remain stayed and thereafter on 18-2-2000, the case was admitted for hearing and it was directed that during the pendency of this application, the interim order dated 4-9-2001shall remain operative and stayed. Order of stay is still continuing. The opposite party No. 2 had already appeared even before admission of the case. 6. Shri Ajay Kumar Sinha, learned counsel appearing on behalf of the petitioner, while challenging the order of revisional Court and entire proceedings, at the very outset submits that on perusal of the - 4 - entire complaint petition no criminal offence is made out. It was submitted that the contents of the complaint petition indicates that there were dispute in between the parties which was purely civil in nature and for such allegation the court below was not required to proceed with the case. It was submitted that the learned Magistrate after conducting inquiry and examining the complainant on S. A. with a detailed reason had rejected the complaint petition under section 203 of the Code of Criminal Procedure. Learned counsel for the petitioner has pointedly referred to the order dated 5-8-1996 which indicates that while rejecting the complaint petition the learned Magistrate had recorded that on the basis of material available on record no criminal intention on the part of the petitioner was proved. On the contrary it was noticed by the learned Magistrate that the intention of the petitioner was clear due to that reason he had even refunded Rs. 23,805/- to the petitioner. 7. It was submitted by learned counsel for the petitioner that the revisional Court while exercising its revisional jurisdiction had exceeded its jurisdiction. It was submitted that the Revisional Court while hearing the revision petition had examined the evidences which were brought on record as if the revisional court was exercising power of the Appellate Court which is not the requirement of law. It was further submitted that while passing the revisional order the revisional Court has even recorded finding on the satisfaction of prima-facie case. It was argued that once the revisional court had recorded its finding on the basis of material on record regarding commission of offences, the learned magistrate was having no option - 5 - to differ with the finding of the learned Additional Sessions Judge and accordingly learned magistrate by its order dated 28-2-2000 has passed the order of cognizance on the same material on which earlier in the year 1996 he had rejected the complaint petition. 8. Learned counsel for the petitioner, further submits that on the basis of material available on record and keeping in view the fact that alleged occurrence had taken place long back in between 8-6-94 and 15-12-95, without any progress in the proceeding, after lapse of such a long period it would not be appropriate to direct the petitioner to participate in the criminal proceeding before the court below. Accordingly it has been prayed to quash the order of the revisional Court as well as criminal proceeding including the order dated 28-2- 2000 passed by learned Judicial Magistrate. 9. Shri G. K. Jha, learned counsel appearing on behalf of the opposite party No. 2 has vehemently opposed the prayer of the petitioner. It was submitted that learned Additional Sessions Judge had examined the entire material and thereafter satisfied with the prima-facie case had allowed the same. It was further submitted that whatever ground has been taken by the petitioner can be looked into by the concerned Court where the proceeding is pending. It was submitted that at the stage of cognizance only prima-facie satisfaction of the concerned magistrate is required to be seen and there is no error or defect either in the order dated 28-2-2000 passed by the learned Magistrate or in the order of the revisional court. It was argued that under the provision of the Code of Criminal Procedure, the petitioner is having a remedy to raise all the pleas at the stage of - 6 - charge and as such it would not be appropriate to interfere with the order of cognizance that too while exercising power under section 482 Code of Criminal Procedure. Accordingly he has prayed for rejection of the petition. Smt Indu Bala Pandey, learned counsel for the State has supported the stand taken by Shri. G. K. Jha, learned counsel appearing on behalf of the opposite party No. 2. 10. Besides, hearing learned counsel for the petitioner, the opposite party No. 2 and State I have also examined the materials available on record. It is not in dispute that while exercising power under section 482 of the Code of Criminal Procedure, this Court should refrain from going into detail of the case but in the facts and circumstances of the present case, particularly in view of the fact that alleged occurrence had lastly taken place in the year 1995 and the matter remained pending for such a long time without any progress in the complaint case, it would not be appropriate for this Court to direct the petitioner to take all the pleas which has been taken in this petition at the stage of charge. As such even at this stage it would be appropriate to go into details of the case and accordingly the Court was inclined to examine all the materials available on record and examine the same. On perusal of the complaint petition the court is satisfied that for such allegation the complainant was not required to approach for invoking the criminal jurisdiction of the learned Magistrate. However the learned Magistrate after conducting inquiry by a detailed order had already rejected the complaint in the year 1996. The learned Additional Sessions Judge on revision preferred by the complainant, oblivious of the fact that occurrence had taken - 7 - place long back and that too the allegation was basically civil in nature, exceeding its jurisdiction has recorded a definite finding regarding its satisfaction of commission of offence by the petitioner. This was not required on the part of the learned Additional Sessions Judge while hearing the revision petition. The revisional jurisdiction is not to be exercised in such a manner. The learned Additional Sessions Judge was not hearing an appeal and once he had decided to remit back the matter to the Court of learned Magistrate for further inquiry, in that event at least he was not at all supposed to record a definite finding recording commission of offences. In such a situation the learned Magistrate was left with no option but to pass an order of cognizance which he has done by its order dated 28-2-2000. 11. Accordingly, in view of the facts and circumstances as indicated above, the Court is of the opinion that it is fit case for exercising inherent jurisdiction in favour of the petitioner and as such the order dated 13-9-1999 passed in criminal revision No. 591 of 1996 by the 6th Additional Sessions Judge as well as the entire criminal proceeding in complaint case No. 140 is here by set aside and petition stands allowed. S.P. (Rakesh Kumar, J.)