IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39116 of 2006 1. Taiyab 2. Moshim 3. Shamim , Sons of Rojid 4. Md. Iliyas, Son of Late Hanif 5. Siddique, Son of Imak Ali 6. Md. Insar, Son of Late Bipat Ali 7. Md. Ibrahim, Son of Md. Insar 8. Md. Hasib, Son of Late Yasin 9. Md. Jamal, Son of Tamiz 10. Md. Taiyab @ Tanzip Rehman Son of Latif 11. Ahmad @ Ahmad Hussain Son of Sharif 12. Rojid , Son of Bipat Ali 13. Noor Mohammad, Son of Late Athar Ali All resident of Village Masuria, P.S. Mahalgaon ( Jokihat), District –Araria --- Accused --- Petitioners Versus 1. THE STATE OF BIHAR 2. Md. Tahir, Son of Late Sk. Hanif, resident of Village- Masuria,Tola-Prasadpur, Police Station-Jokihat, Disrict-Araria -------------------------- Opp.Parties. ----------- For the petitioners : Mr. Mukesh Kumar Rana, Advocate For the State : Dr. Mayanand Jha, A.P.P. For Opp.Party no.2 : None. ________ O R D E R The present application by the F.I.R. named accused of Jokihat ( Mahalgaon) P.S. Case No.77 of 2002 and the subsequent Protest-cum- Complaint Case No.597 of 2003 is for the quashing of the order dated 20.2.2006 passed in Cr.Revision No.54/321/2004, Trial No.29/2004 by Sri Samir Kumar Jha, the learned First Additional Sessions Judge, Araria, whereby he while setting aside the order dated 24.7.2004 passed by the learned Chief Judicial Magistrate, Araria, in Complaint Case no.597 of 2003 has directed the trial court to proceed with the Complaint Case in accordance with the - 2 - settled principles of law. It appears that one Md. Tahir, impleaded herein as Opp.Party no.2 gave his fardbeyan at about 8.00 P.M. on 11.6.2002 in respect of an occurrence which took place earlier at about 10.00 P.M. on the night of 10.6.2002 on the basis whereof the aforesaid police case was registered under Section 436 and other allied Sections of the Penal Code on 12.6.2002. It was alleged that at about 8.00 P.M. he had seen Md. Siddique, Md. Insar, Rojid, Md. Taiyab and Md. Shamim assembled and holding a meeting in the common aangan he shared with Md. Rojid and saying that he would not vacate the lands in an easy manner and that his house should be put on fire. It is said that later on at about 10.00 P.M. all the F.I.R. named accused entered into his aangan, surrounded him and then having caught hold of him threw him on the ground and Md. Siddique ordered to set fire to his house whereupon Md. Taiyab sprinkled kerosene oil and Md. Mohsim threw a lighted match-stick on his house and ordered for throwing the informant in the fire that resulted. The informant raised alarm which attracted several people including Md. Akbar, Mustafa, Sainul and Rasul who arrived and doused the fire. The fire is said to have burnt some animals and food grains kept therein. The cause for the occurrence is said to be land related disputed. It further appears that the police after due investigation submitted a final form against the petitioners and recommended for initiating a proceeding under Sections 182/211 Cr.P.C. against the informant. After accepting the final form, the protest petition filed by - 3 - the informant on 25.6.2002 was taken up and the court proceeded with an enquiry under Section 202 Cr.P.C. and after recording the statement of the complainant on S.A. and the deposition of two of the complainant’s witnesses he dismissed the complaint under Section 203 Cr.P.C. on 27.7.2004 on the ground of paucity of sufficient ground for proceeding. The said order of dismissal was impugned in Cr.Revision No.54 /321 of 2004 preferred by the complainant before the Sessions Court. The Revision was heard by the learned 1st Additional Sessions Judge who set aside the impugned order by his order dated 20.2.2006 and remitted the matter back to the trial court with a direction to proceed with the complaint case in accordance with the settled principles of law. On perusal of the impugned order of the revisional court it appears that before disposing of the revision the court called for and perused the case records as also the records of Jokihat ( Mahalgaon) P.S. Case no.77 of 2002. He also appears to have re-appraised the materials available in the case records of the complaint case and came to a conclusion that a prima facie case appeared to have been made out against the accused persons under Sections 147,323 and 436 I.P.C. He also appears to have been aware of the fact that all the witnesses cited in the protest-cum- complaint petition had not been examined by the complainant. He also had the occasion to peruse the case diary of the police case. To my kind the impugned order of the revisional court appears to be ill-founded and based on facts other than those on - 4 - record. While dismissing the evidence of the witnesses he appears to have come to the conclusion that the complainant in his statement had fully supported his case of the accused persons after pouring kerosene oil on the house set it on fire in which his cattle and substantial quantity of food grains were burnt, that C.W.1 , Bibi Ishrat , the wife of the complainant, has supported the complainant’s case in which she has corroborated the fact that accused persons were also assaulting her husband and had also set their house on fire that C.W.2, Md. Gaffar has also supported the prosecution story and his arrival has been shown after the occurrence. He also has noticed that the complainant could not examine rest of his witnesses named in the protest petition. I have myself perused the deposition of the witnesses given in the complaint case as they have been appended as Annexure-4 series and I am of the view that the learned revisional court has misconstrued the evidence laid before the cognizance taking court.C.W.1 Bibi Ishrat in her deposition at the enquiry has stated that she was attending a marriage ceremony at the house of Rakib nearby and on hearing alarm raised by her husband she returned home and found her house set on fire and the accused persons assaulting her husband. She has not disclosed the names of the accused nor has she stated how her house started burning. C.W.2 is Md. Gaffar who in his deposition stated that at about 10 .00 P.M. the house of Tahir had caught fire and on hearing hulla he arrived at the spot and found people going away amongst whom he could recognize only - 5 - Noor Mohammad. He also stated of the animals and food grains having been burnt and it was Tahir who had informed him that it was Taiyab and Noor Mohammad who had set fire to his house. This witness stated that many people at arrived at the place but he could not recall to memory the names of any of them. It would, thus, appear from the deposition of C.Ws 1 and 2 that none of them had seen any of the accused setting fire to the house and whereas C.W.1 merely talks of her house burning and her husband being assaulted by the accused she does not name any of the accused persons. So far as C.W.2 is concerned, he merely states of having seen Noor Mohammad leaving the place and of the complainant disclosed to him the names of Taiyab and Noor Mohammad as having set fire to the house. Apparently, from these statements one cannot find any corroboration of the story propounded by the complainant and the learned Revisional Court has arrived at a erroneous finding of the accused persons having participated at the occurrence. In that regard the order of the learned Magistrate dated 24.7.2004 dismissed the complaint under Section 203 Cr.P.C. and the reasons assigned therefore is fully justified and does not call for any interference There is another aspect of the matter. An offence under Section 436 I.P.C. is triable by the Court of Sessions. The proviso of Section 202(2) Cr.P.C. lays down that where the offence appears to be execlusively triable by the Court of Sessions, the Magistrate is bound to call upon the complainant to produce all his witnesses and examine - 6 - them on oath. Failure of the Magistrate to call upon the complainant to produce all his witnesses and to examine them on oath vitiates further proceeding. From the impugned order of the revisional court, it does not appear that the complainant who had also been heard had made any hue and cry of not having been permitted to examine the other witnesses named by him in the complaint petition. Therefore, in the absence of all the witnesses of the complaint petition having not been examined at the enquiry under Section 202 Cr.P.C. the revisional court could not have arrived at a finding that an offence under Section 436 I.P.C. had been made out. For the reasons stated above, the impugned order dated 20.2.2006 passed by the learned Addl.Sessions Judge, Araria in Cr.Revision No.54/321 of 2004 is hereby set aside and the application is allowed. Before I part it is necessary to mention certain facts. Notice had been issued to Opp.Party no.2, the complainant, in the admission matter but from the report of the process server it appears that Opp.Party no.2 had died. Time was granted to the petitioners to file a substitution petition but eventually on 26.6.2008 it was submitted on their behalf that they were not in a position to supply the names of heirs of Opp.Party no.2 and at their request the name of Opp.Party no.2 was deleted from the record. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 18th April,2009 Nawal Kishore Singh/A.F.R