IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39301 of 2005 1. SHAMIM AKHTAR S/O LATE MD. SHAFI, R/O MOHALLA MAHAWAT TOLI, P.S. BETTIAH (TOWN), DISTRICT WEST CHAMPARAN. 2. GULREJ MIAN @ GULREJ AKHTAR S/O LATE SHEIKH BADRUL HASSAN R/O RAKHAI, P.S. SHIKARPUR, DISTRICT WEST CHAMPARAN. Versus 1. THE STATE OF BIHAR THROUG HOME SECRETARY, OLD SECRETARIATE, PATNA. 2. THE DIRECTOR GENERAL OF POLICE, GOVT. OF BIHAR, OLD SECRETARIATE, PATNA. 3. THE SUPERINTENDENT OF POLICE, BETTIAH, WEST CHAMPARAN. 4. RAM CHANDRA MANJHI, SUB-INSPECTOR CUM OFFICER-IN-CHARGE, TOWN P.S. BETTIAH, WEST CHAMPARAN. ----------- For the Petitioners : M/S K.N. Choubey,Sr.Adv. A.N. Choubey,Adv. For the State : Mr. Dilip Kumar Sinha,A.P.P ---------- 10. 24.2.2010. Learned counsel for the petitioners submits that he has filed I.A. No.338 of 2010, however same is not on record of the case. The learned counsel for the State admits that he has received copy of said Interlocutory Application. Keeping in view the fact that the present case is running under the heading for admission since the 2005 and to avoid further delay, without calling for the Interlocutory Application from the office it was felt appropriate to accept the copy of Interlocutory Application which was produced by the learned counsel for - 2 - the petitioners. With the consent of the parties, the petition may be kept on record of the case. Regarding contents of the Interlocutory Application, the learned State counsel admits that same petition has been served on him. Heard learned counsel for the petitioners and learned counsel for the State. The petitioners, while invoking inherent jurisdiction of this Court under Section 482 of Cr.P.C., has mainly prayed to quash/annul the order dated 4.10.2005 passed in Bettiah Town P.S. Case No.180 of 2005 by the learned Chief Judicial Magistrate, West Champaran at Bettiah on an application made by the Investigating Officer-cum-Officer-in- charge, who has been impleaded as opposite party no.4 in the present case. By an order dated 21.10.2005, a Bench of this Court passed an order for issuance of notice to opposite party no.4, Officer-in-charge of the Bettiah Town Police Station. While passing order for issuance of notice, this Court further directed that in the meanwhile - 3 - further proceeding in Bettiah Town P.S. Case No.180 of 2005 shall remain stayed. Subsequently, the opposite party no.4 appeared and he also filed counter affidavit in the case. Learned Senior Counsel Mr. K.N. Chaubey, while pressing this petition, submitted that despite the fact that order which was issued by the court below regarding warrant of arrest against the petitioners was stayed by this Court by its order dated 21.10.2005, the petitioner no.1 was apprehended by the police and he was produced before the Magistrate. However, the learned Magistrate, after being satisfied that order dated 4.10.2005 was already stayed by this Court, did not pass any order for remand of petitioner no.1 and he, without being remanded, was released that too without furnishing any bail bond. So far as petitioner no.2 is concerned, learned counsel informed that he too was apprehended but immediately the police, after coming to know about the stay order of this Court, released him. It has been submitted that since the - 4 - opposite party no.4 has disobeyed the order of this Court, a proceeding under the Contempt of Court Act be initiated against him. It was argued that by way of his arrest, his right for being released under Section 438 of Cr.P.C. has been taken away and learned Senior Counsel prays that the petitioner may be granted protection against the arrest by the police. Learned Senior Counsel challenging the order dated 4.10.2005 has further submitted that the order in question was without jurisdiction since the order was passed by the learned Magistrate in the aid of investigation to the police and as such, he submits, the order is liable to be set aside. An Interlocutory Application vide I.A. No.338 of 2010 has been filed under Section 340 of the Cr.P.C. through which the petitioner alleges that opposite party no.4 in paragraph-8 of the counter affidavit has made an incorrect statement regarding filing of memo of evidence before the Magistrate while making prayer for issuance of warrant of arrest against petitioners. Learened - 5 - counsel for the petitioner submits that before the court below no Memo of Evidence was filed. I have also heard learned counsel for the State, who on the basis of materials available in the case diary, submits that it is true that petitioners were not named in the F.I.R. and after investigation, 1st charge sheet was submitted against three accused persons and investigation was continuing on other points. However, till date, no charge sheet has been submitted against these petitioners before the learned Magistrate. He submits that during further investigation, materials were collected indicating involvement of these petitioners and for just and complete investigation custodial interrogation of petitioner was necessary and as such in accordance with the statutory provisions petition was filed before the learned Magistrate for issuance of warrant of arrest against both the petitioners. He submits that the learned magistrate vide its order dated 4.10.2005 rightly directed for issuance of warrant of - 6 - arrest. There is no error in the order. Learned State counsel submits that since charge sheet against these petitioners was not submitted on the date when warrant of arrest was issued, it cannot be considered that any proceeding against these petitioners was pending before the court of learned magistrate on the relevant date. After examining the material on record, prima facie, I am of the view that order dated 4.10.2005, whereby warrant of arrest was issued, has now become inoperative and, accordingly, regarding prayer for quashing of this order, the present petition has become infructuous. Moreover, I am indicate that since on the date of order whereby warrant of arrest was issued, no charge sheet was submitted against these petitioners, it will be deemed that no proceeding against these petitioners was pending and accordingly in absence of pendency of any proceeding before the court below, the petitioners were not entitled to invoke inherent jurisdiction under Section 482 of Cr.P.C. of this Court. - 7 - Long back in a case reported in A.I.R.1945 PC 18 (King Emperor Vs. Khwaja Nazir Ahmad), it was held that court functions begin when a charge is preferred before it, and not until then. Again and again the law laid down in Khwaja Nazir Ahmad’s case (Supra) has been approved by Hon’ble Supreme Court. In a case reported in A.I.R. 1963 SC 447 (State of West Bengal Vs. S.N. Basak), the Supreme Court reiterated the same view. In the case of S.N. Basak (Supra), Basak had filed petition before High Court of Calcutta for quashing of investigation against him and it was quashed. In the case when Basak had filed quashing petition, F.I.R. was recorded and investigation had started. The Supreme Court at paragraph-3 of its order in Basak’s case (Supra) held that there was no case pending at the time excepting that respondent had appeared before the court, had surrendered and had been admitted to bail. The Supreme Court again in a case reported in A.I.R. 1974 SC 1146 (Jehan Singh Vs. Delhi Administration) followed the law laid down in Nazir Ahmad Case (Supra), I - 8 - may say that even till date said law has not been altered by any court of the land. Without going into the merit of the case, I may say that since order dated 4.10.2005 has already lost its life, there is no purpose to further proceed with the present case and petition is liable to be rejected on the ground that the same has become infructuous. So far as relief prayed on behalf of the petitioner regarding giving protection to him from the arrest of the police is concerned, I do not think that while exercising power under Section 482 of Cr.P.C., this Court can extend such privilege. Regarding prayer for initiating contempt proceeding against opposite party no.4, prima facie, I am not satisfied due to the reason that no certified copy was provided to the Investigating Officer while he had initially apprehended the petitioner no.1 and moreover, immediately he was produced before the learned Magistrate and learned Magistrate keeping in view the fact that his order was already stayed by this Court immediately released this petitioner. I - 9 - am satisfied that it is not a case in which any action is required to be taken against opposite party no.4. So far as Interlocutory Application filed on behalf of the petitioner to initiate an enquiry under Section 340 of the Code of Criminal Procedure against opposite party no.4 is concerned, it is to be noticed that the opposite party no.4 had filed counter affidavit in the year 2005. In paragraph-8, he had stated that while making prayer for issuance of warrant memo of evidence was filed which according to learned Senior Counsel for the petitioners, is incorrect and false but fact remains that a petition was filed by the officer-in-charge (opposite party no.4) in which he had atleast indicated some reasons for issuance of warrant of arrest. I do not think that statement made in paragraph-8 of the counter affidavit can be stretched to the extent of warranting an enquiry against him under Section 340 of the Cr.P.C. Accordingly, prayer of petitioner made in I.A. No.338 of 2010 filed in this case is rejected. - 10 - N.H./ In view of the facts and circumstances mentioned hereinabove, I do not find any merit in this petition and, accordingly, petition stands rejected. In this case in compliance with the order dated 1.11.2006 passed by this court case record from the court of Chief Judicial Magistrate,West Champaran at Bettiah in Bettiah Town P.S. Case No.180 of 2005 was called for and same was received and lying with the record of this case. Since the petition filed by the petitioner has already been rejected, it is necessary to direct the office to remit back all such records to the court below without any further delay. Accordingly, it is directed to remit back the record of the case which was received from the court below forthwith. ( Rakesh Kumar,J.)