IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.16714 of 2009 NEELAM KUMARI, W/O SHRI UMESH CHANDRA SINHA, CHILD DEVELOPMENT PROJECT OFFICER AT HAJIPUR, DISTRICT VAISHALI, RESIDENT OF FLAT NO. 102, SUSHMA PAPARTMENT, RAJENDRA NAGAR, ROAD NO. 10, P.S. KADAM KUAN, DISTRICT PATNA ,, PETITIONER Versus 1. THE STATE OF BIHAR 2. PRAMOD KUMAR @ PRAMOD PASWAN, S/O BALESHWAR PASWAN, RESIDENT OF MOHALLA, CHOTTI YUSUFOUR P.S. INDUSTRIAL AREA, DISTRICT VAISHALI .. OPPOSITE PARTIES **** For the petitioner .. Mr.Rajeev Verma,Sr.Adv. with Mr. Prabhat Kr., Adv. For the State .. Mr. Devendra Pr. Tiwary, APP For opposite party no. .. Mr. Surendra Kishore Thakur, Adv. **** /4/ 02.12.2010 Heard the counsel for the parties. 2. This criminal miscellaneous petition is against the order, dated 17.04.2009, passed by the District Judge, Vaishali, in Criminal Revision No. 45 of 2009, by which he has set aside the order, dated 26.02.2009, and remitted back the case to the learned Magistrate to pass a fresh order. 2 3. The prosecution case, as alleged in the complaint case, is that the wife of the complainant, Neelam Kumari, had applied for the post of Aagan Bari Sevika in Ward No. 28, Centre No. 55 his name was in the first position in the list. The complainant went in the office of the accused on 05.09.2008 to enquire about the appointment and it is alleged that Neelam Kumari, Child Development Project Officer, the accused, assured for appointment of wife of the complainant, but, demanded Rs.75,000/- and when the complainant denied then it is alleged that she was abused by calling caste name “Dusadh” and said to go out. The case was filed for offence under Sections 406 and 466/34 of the Penal Code and 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 4. The complainant was examined on solemn affirmation and the witnesses were also examined during enquiry under Section 202 of the Criminal Procedure Code. 5. However, the learned Magistrate, after considering the statement, complaint and witnesses, by order, dated 26.02.2009, issued summon against the 3 accused persons mentioned in the complaint petition after taking cognizance for appearance under Section 504 of the Criminal Procedure Code. 6. Being aggrieved the complainant preferred the revision petition before the District Judge against the impugned order making out grievance that Magistrate has wrongly refused to take cognizance under Sections 406 and 466/34 of the Penal Code and 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. However, in the revision petition before the District Judge the complainant made party as opposite party and revision petition was admitted and ordered to call for the lower Court's record and issued notice to the complainant. The District Judge without issuing notice to accused who were opposite parties in the revision petition set aside the impugned order, dated 26.02.2009, taking cognizance by the Magistrate and remanded the case behind the back of the accused persons on the ground that the learned Magistrate failed to appreciate the evidence and passed order on conjectures and surmises ignoring the evidence. 7. The accused persons have challenged the impugned order before this Court and submitted that the 4 Magistrate is not only to take cognizance mechanically and he should not treat enquiry under Section 202 of the Criminal Procedure Code, merely a routine work, but, required to proper application of mind isolating the probability and other aspect of the case and has relied upon decision reported in 2008(1) P.L.J.R., 723 (Vijay Kumar & Anr. Vrs. The State of Bihar & Anr.) and has, further, submitted that by the impugned order the learned District Judge has been passed the order behind the back and has virtually given a direction to take cognizance under other Section whereas taking cognizance and issuing process is domain of the Magistrate to form his opinion and the revisional Court can not substitute it’s discretion. It has been contended that the learned District Judge while admitting the case, ordered to issue notice against the opposite parties, but, order passed behind the back. 8. The learned counsel for the opposite party, however, contends that a revision can be disposed off without hearing another party. The learned counsel for the opposite party, further, contends that the High Court while exercising power under revision under Section 401(ii) of 5 the Criminal Procedure Code, since, the impugned order does not prejudice the accused he is not required to be heard and has, further contended that an accused has no locus to be heard during the enquiry or investigation and when the cognizance was taken and even the order passed after issuing process, but, since the notice has not been served, the accused has no right to be heard in view of the fact that if the accused has not been heard, accused is not being prejudiced as today there is no order of cognizance and has submitted that accused has no right before issuance of process and for this has relied upon a decision reported in A.I.R. 1984 S.C., 718 (Nappa Reddy AP Sen Vrs. Balkrishna Eradi) and A.I.R. 1979 S.C., 1977 [State (Delhi Administration) Vrs. I.K. Jagina & Anr.]. 9. However, on the respective submissions of the parties the question for consideration whether the impugned order is sustainable without hearing the accused, as admittedly the impugned order has been passed behind the back of the accused person and, further, whether the order of the District Judge setting aside the order of the Magistrate is sustainable in law and whether the order of the Magistrate suffers from any illegality 6 while passing the order taking cognizance under Section 504 of the Indian Penal Code with due application of mind. 10. The fact of the case is that the complaint has been filed with an allegation that the wife of the complainant has applied for appointment as Aagan Bari Sevika in Ward No. 28, Centre No. 55, which was reserved for Scheduled Castes and it is alleged that her name was in the first merit list and when her husband, the complainant, went to enquire then a demand of Rs.75,000/- was made and when he denied to pay then he was abused and asked to go out and there was scuffle as well. The witnesses were examined. The Magistrate, after due application of mind, took into consideration that there is no paper about the position of the wife of the complainant in the merit nor any averment or register to show there is any change or altercation and further took into consideration the fact since Ward No. 28 was reserved for Scheduled Castes, hence, found that there is no occasion to throw out the complainant on the ground of his being a Scheduled Castes and, further, took into consideration that no allegation made before any authority 7 for demand of money and after due application of mind took cognizance under Section 504 of the Indian Penal Code, hence, it appears that the Magistrate duly applied his mind to the facts and circumstances of the case. It is true that the Magistrate, at this stage, cannot see whether evidence is reliable nor can reasonably appreciate the evidence meticulously, but, the Magistrate has jurisdiction to apply it’s mind that evidence is clearly inconsistent with the accusation and has duly applied it’s mind to the facts and circumstances and at this stage of issuing process after taking cognizance the Magistrate’s opinion shall prevail. The order taking cognizance, itself, indicate that the Magistrate formed opinion after du application of mind. 11. However, the learned District Judge set aside the impugned order on the ground that the Magistrate has not property appreciated the evidence and, further, held that the Magistrate passed the final order onconjecture and surmises ignoring the evidence. However, Magistrate took into consideration the relevant facts there is nothing in the order of the District Judge that the Magistrate took into consideration any irrelevant facts and passed the order behind the back without hearing the accused. 8 12. The learned counsel for the petitioner has relied upon a decision reported in 2008(1) P.L.J.R., 723 (Vijay Kumar & Anr. Vrs. The State of Bihar & Anr.) where it has been observed quoting Rule 31 of the Criminal Court Rules of the High Court of Judicature that the examination of the complainant and witness is not to be a mere formality rather it has to be an intelligent enquiry to such an extent as to set out the ground to enable the Magistrate to summon an accused and it has been further observed that the Magistrate holding an enquiry has to deeply indulge with the enquiry to reach to conclusion and has never to take serious vigilance of holding enquiry that any detachment or any difference and not to treat the enquiry under Section 202 of the Criminal Procedure Code as a mere routine work, but, require to make proper enquiry into the truthfulness of the allegation and property mind is to apply so as to isolating the probability and other aspect of the case. It could be possible that unnecessary remanding the order is not the solution. However, under the present facts and circumstances of the case the Magistrate formed it’s opinion on due application of mind taking into 9 consideration the facts and circumstances of the case. 13. The learned District Judge by the impugned order held that learned Magistrate failed to properly appreciate the evidence recorded during enquiry and has passed the order ignoring the evidence of witness, hence, acted on conjuncture and surmises. However, at the stage of issuing process the opinion of the Magistrate prevails and, at this stage, the Magistrate is not required to meticulously examine the fact, but, the Magistrate may consider the allegation is in contrast and inconsistence with the evidence. However, the order passed by the Magistrate taking cognizance under wrong section even then the order taking cognizance is not bad. 14. However, even if the cognizance is taken in wrong section the cognizance is not required to be interfered with and the party may have raised the issue for other offence at the stage of framing of the charge. If the accused being aggrieved he could have raised the issue at the stage of framing of the charge supplementary affidavit even taking cognizance, the matter could have adjusted at the stage of framing of the charge. The next question that impugned order passed behind the back of the accused 10 persons, now, opposite party, even noticed was ordered to have been issued. However, one cognizance has been ordered to issue the accused persons get a right to be heard the order. 15. However, the next question is that the order taking cognizance has been set aside behind the back. However, once a cognizance has been taken a right accrues to the accused persons to be heard if order is challenged and once the accused person is party and order passed by the District Judge to issue notice to the accused person, then passing the order without taking steps to notice the accused behind their back apparently touches the right of the accused person to be heard and the impugned order can not sustain. 16. The learned counsel for the opposite party, however, contended that till the cognizance is taken the accused has no right to participate and further and even on strong suspicion cognizance can be taken. However, the question is neither that interference of the accused at the stage of enquiry nor the question is whether there is strong suspicion. 17. The question for consideration is whether the 11 accused accrue a right after taking cognizance to be heard. However, once the cognizance is taken and summon is ordered to be issued under Section 204 of the Criminal Procedure Code, the accused get a right. 18. However, the order passed in the revision is after the order taking cognizance and issuing process against the accused persons and on the date of passing of the impugned order by which the order taking cognizance under Section 504 of the Indian Penal Code was set aside and case remanded back to take into consideration the other evidence almost amounts to a direction to take cognizance under graver offence certainly prejudices the accused and the accused persons are under facts and circumstances required to be heard when they were party in the revision petition and there was order of District Judge to issue notice. Hence, the impugned order passed without taking steps to notice behind the back can not sustain. 19. However, it has been argued that no prejudice has been caused, however, as per the allegation the cognizance has been taken under Section 504 of the Indian Penal Code and by the impugned order it has been 12 set aside and virtually an order has been passed with a direction to reconsider amounts to prejudice the accused. Hence, the accused is required to be heard and another order passed without hearing him behind the back is not sustainable in the eye of law, hence, on both counts the impugned order suffer from illegality or illegality. 20. The impugned order, dated 17.04.2009, passed by the District Judge, Vaishali, in Criminal Revision No. 45 of 2009 is set aside and the petition is allowed. A.F.R. S.A. ( Gopal Prasad, J.)