IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7294 of 2008 ***** ANIL KUAR GUPTA, S/o – Shri Dwarika Prasad Gupta, resident of village – Pipra Kothi, District – East Champaran. ------------------ Petitioner. Versus 1. THE STATE OF BIHAR. 2. Ram Kumar Tiwary, S/o – Shri Nandu Tiwary, resident of Village – Jahigra, P.S. – Pipra Kothi, District – East Champaran. ------------------ Opposite Parties. ***** For the petitioner : Mr. Shri Prakash Srivastava, Adv. Mr. Santosh Bharti, Adv. For the Opposite Party No. 2: Mr. Shardanand Mishra, Adv. For the State : Mr. Abhay Kumar, APP. ***** 04. 30.04.2010 Heard learned counsel for the petitioner, State and Opposite Party no.2. This application has been filed seeking quashing of the order dated 30.03.2007 passed in Kothi P.S. Case No. 47 of 2002 taking cognizance by Chief Judicial Magistrate, Motihari, for the offence under Sections 307, 324/34 of the Indian Penal Code. The relevant fact in short is that at the instance of opposite party no. 2 in Pipra Kothi P.S. Case No. 47 of 2002 was instituted, wherein informant has alleged that while he was returning from court at Motihari, along with his cousin on bike from behind three persons namely, Shashi Bhushan Singh, Kamlesh Singh and this petitioner, Anil Kumar Gupta, arrived at on other bike and Shashi Bhushan Singh fired a shot at him causing injury in his left leg. The occurrence took place due to - 2 - continued previous enmity as a second attempt on the life of the informant. When he tried to escape towards north, the petitioner who was driving the bike and the miscreants abused and directed to repeat the firing in compliance of the direction of Kamlesh Singh, fired another shot, informant leaving the bike and ran away. Meanwhile, at arrival of the police all the three miscreants including this petitioner escaped. On investigation, police submitted charge sheet against the two persons Kamlesh Singh and Shashi Bhushan Singh on 05.08.2005 itself. It kept the investigation pending against the applicant finally finding no evidence submitted final form. But the court below taking a different view and also considering that cognizance of this case has already been taken earlier transferred the record to the court of Shri S.P. Shukla, Judicial Magistrate, Motihari, for commitment of the case to the court of session giving rise to this instant application. It is also contended that this is a malicious prosecution since informant of this case is a convict in a case instituted at the instance of applicant for murder of his brother Raj Kumar Gupta, i.e. Sugauli P.S. Case No. 52 of 1992. Learned counsel for the petitioner while assailing the impugned order submitted that during the investigation police never found any material against the applicant and ultimately submitted final form but court below without having any specific - 3 - reason took a different view proceeded with the case and if such situation is permitted to continue it will be abuse of the process of law. Learned counsel for the petitioner further placed reliance on the decisions of the Apex Court as laid down in Madhav Rao Jiwajirao Scindia & others Vrs. Sambhajirao Chandrajirao Angres & others (1988)1 S.C.C. 692 (Para-9), State of Karnataka Vrs. L Muniswamy & others (1997)2 S.C.C 699, Janta Dal Vrs. H.S. Choudhary & other (1992)4 S.C.C. 305, and in case of Inder Mohan Goswami Vrs. The State of Uttaranchal (2008) 1 PLJR 82. The learned counsel for the opposite party no. 2 and learned Additional Public Prosecutor while supporting the order submitted that the matter may be agitated and decided by the trial court at the time of hearing on the point of charge. It is also pointed out that by order of this court dated 16.04.2009, further proceeding of the court below has been stayed. It is now undisputed position that parties are at litigating terms since before in the fardbeyan of the instant case itself, the informant opposite party no. 2 has stated about the continued enmity and attempt on his life in the present case as of second one. Simultaneously, the applicant has not filed any chit of paper but asserts that opposite party no. 2 has participated in commission of murder of his brother in that case he is a convict and directed to suffer rigorous imprisonment for life. - 4 - The cardinal principle of law is that enmity cuts on both the ways, the Chief Judicial Magistrate, Motihari, has since already once taken cognizance in this case earlier when charge sheet was submitted against two of the named accused persons out of three in exercise of its own right differed with the outcome of the investigation and ordered commitment of the case of the petitioner also to the court of session, where case of other two accused persons was pending. There is no dispute in the legal provision that inherent powers under Section 482 of the Criminal Procedure Code, though, wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself, authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, when the court would be justified in preventing injustice by invoking inherent powers in absence of specific provision in the statute. This is what the spirit of the decisions of the Apex Court placed, relied upon by learned counsel for the applicant aforementioned. It is normally seen that the litigants in stead of taking recourses of the specific provisions as contemplated under Code of Criminal Procedure knocks the doors of this court invoking inherent jurisdiction as contemplated under Section 482 of the Criminal Procedure Code, which can be avoided only - 5 - by taking recourse of the provisions of law also before the subordinate courts itself and only when such courts fail or refuse to exercise their jurisdiction, the High Court may exercise its inherent powers to correct. In the instant case, the case has been ordered to be committed to the court of session, where the applicant has ample opportunity to get his grievances, if any, finally redressed by the court of session itself at the very initial stage just by participating the hearing on the point of charge. There is specific provision in the case of Code of Criminal Procedure for this purpose i.e. Section 227 of I.P.C. the Code which reads as such: “Discharge – If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” The court of session is bound to hear the parties at the point of charge at the very initial stage and if he finds no material he can discharge the applicant. While dealing with the object of the provision as contemplated under Section 227 of the Criminal Procedure Code, the Apex Court in a case of Shri Satish Mehra Vs. Delhi - 6 - Administration & Anr. reported in (1997) BBCJ 53 SC = 1996 (7) J.T. 6 (S.C.) in paragraph 14 has gone to this extent that at this stage even the documents produced by the accused persons may also be considered and has clearly held as such: “The object of providing such an opportunity as is envisaged in Section 227 of the code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. if the materials produced by the accused event at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code.” In the said decision, the Apex Court has further in paragraph – 15 has said that: “But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally - 7 - completing the procedure to pronounce the conclusion on a future date. We are mindful that most of the sessions courts in India are under heavy pressure of workload. If the Session Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or nip the proceedings at the stage of Section 227of the Code itself. The applicant has a liberty to agitate his points before the trial court at the stage of Section 227 of the Code of Criminal Procedure. The trial court shall consider the materials and pass appropriate order in accordance with law. With this observation and liberty, this application stands disposed of. Rajeev/ (Akhilesh Chandra, J.)