In the matter of applications under section 482 of the Code of Criminal Procedure. ------- CRIMINAL MISCELLANEOUS No.33300 OF 1999 ------- 1.MD. KAMALUDDIN son of Haji Md.Usman Ali, resident of Purwari Dharmaghar, P.S.Simraha, Distrcit-Araria 2.Mahesh Lal Yadav son of late Bittu Yadav, resident of simraha, P.S.-Simraha, Dist.-Araria ……. ……Petitioners Versus STATE OF BIHAR …… ……Opp.Party With Cr.Misc. No.657 oF 2001 1.RAJ KUMAR GUPTA son of late Satya Narayan Prasad Gupta 2.Jag Narayan Prasad Gupta son of late Mahabir Bhagat Both resident of village-Simraha, P.S.-Simraha Distirct-Araria …… …..Petitioners Versus STATE OF BIHAR …… …..Opp.Party -------- For the petitioners: Mr.Salahuddin Khan Mr.Saurabh Kumar For the informant: Mr.Yogendra Kumar Mr. R.N.Roy For the State : Mrs. Indu Bala Pandey, A.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------- Rakesh Kumar,J. In both cases order dated 8.12.1999 passed by Shri Sheo Murat Ram, Chief Judicial Magistrate, Araria is under challenge and they were heard together and, accordingly, they are being disposed of by a common judgment. 2. The petitioners in both the cases, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) have prayed for quashing of an order of cognizance dated 8.12.1999 passed in G.R. No.619 of 1999 arising out of Forbesganj P.S. Case No.113 of 2 1999. By the said order the learned Magistrate has taken cognizance of the offences under sections 363A and 364A of the Indian Penal Code (hereinafter referred to as ‘IPC’) 3. Short fact of the case is that initially a compliant was filed by one Jawaharlal Gupta in the court of Chief Judicial Magistrate, Araria which was numbered as Complaint Case No.253C of 1999. In the said complaint, the complainant has arrayed five persons i.e. 1.Ganga Prasad Yadav 2.Satyendra Narain Yadav 3.Jagnarain Prasad Gupta 4.Basudeo Prasad Gupta 5.Vijay Kumar Yadav as accused. The complaint was filed for the offences under sections 363, 364A and 323 of the IPC. It was alleged in the complaint petition that earlier complainant’s wife, namely, Asha Gupta had filed a criminal case against the accused persons i.e. accused no.3 and others which was numbered as Case No.1726C of 1998. In the said case daughter of the complainant had given evidence and, thereafter, the accused persons started to threat the complainant regarding kidnapping of her daughter. It was alleged that the complainant’s daughter, namely, Kumari Bindu Bharti was studying in a coaching institute, namely, Suman Bright Coaching Centre and she had gone to attend the classes on 3.2.1999 and, thereafter, she never returned. The complaint was filed on 20.2.1999. The complaint was referred to the police for its registration and investigation under section 156(3) of the Cr.P.C. and, accordingly, first information report vide Forbesganj P.S. Case No.113 of 1999 was registered under sections 363A, 364 and 323 of the Indian Penal Code. While investigation was going on, 3 the victim girl was recovered and thereafter her statement under section 164 Cr.P.C. was got recorded. During investigation the police found that the complaint/ first information report was lodged falsely and, as such, after conducting investigation, the police submitted final form and also recommended for prosecution of the informant/complainant along with his two witnesses, namely, Jagnarain Prasad Gupta and Raj Kumar Gupta. 4. The informant, Jawaharlal Gupta filed a protest- cum-objection petition alleging therein that he had received a letter through the accused Kamaluddin sent by her daughter for her wrongful detention and abduction by the said accused and others and requested the court to take cognizance against accused Kamaluddin, Mahesh Lal and Raj Kumar Gupta. The learned Magistrate at the time of cognizance heard argument advanced on behalf of the informant as well as on behalf of the accused persons. It was submitted that the police had laid final form showing allegation to be entirely false and, therefore, accused whose name transpired in the statement of the victim girl may not be proceeded with. After hearing the parties and perusing the materials available on the record as well as statement of the victim girl recorded under section 164 Cr.P.C. while accepting final form in respect of first information report named accused persons, the Chief Judicial Magistrate by its order dated 8.12.1999 took cognizance of the offences under sections 363A and 364A against the accused persons whose names have transpired in the statement of the victim girl recorded under section 164 Cr.P.C. and, thereafter, the learned 4 Magistrate directed for issuance of process against four accused persons. Aggrieved with the order dated 8.12.1999 all the four accused persons approached this court by filing the aforesaid two petitions details of which have been mentioned above. 5. Mr. Salahuddin Khan, learned counsel appearing on behalf of the petitioners in both the petitions, at the very outset raised an objection that the learned Chief Judicial Magistrate had adopted a proceeding which was alien to the prescribed procedure and contrary to the provisions contained in the Cr.P.C. It was submitted by learned counsel for the petitioners that in a case of submission of final form the learned Magistrate was though entitled to differ with the police report and take cognizance of the offence but at the same time he was not authorized to proceed with the protest-cum-objection petition and take cognizance on the basis of the materials collected during investigation by the police. It was further submitted by the learned counsel for the petitioners that in the entire case diary there was no material showing involvement of the petitioners. On the contrary, the supervising officer had recorded detailed information on the point of false institution of the case by the informant particularly against the petitioner- Kamaluddin, who, according to the learned counsel for the petitioners, was landlord of the informant and litigations in between the informant and the Kamaluddin was going on since long. Learned counsel for the petitioners on the aforesaid grounds has prayed for quashing of the order of cognizance dated 8.12.1999. 5 6. Mr.Yogendra Kumar, learned counsel appearing on behalf of the informant/complainant vehemently opposed the prayer of the petitioners. It was submitted by him that despite the fact that there were sufficient materials in the case diary, to the reasons best known to the investigating officer, in the present case final form was submitted by the investigating officer. It was further submitted that the petitioners prayer for quashing of the order of cognizance may not be entertained by this court, that too, while exercising inherent power under section 482 of the Cr.P.C., which, according to the learned counsel for the petitioners, is to be exercised in exceptional and rarest of the rare cases. It was submitted that the victim girl had stated categorically in her statement recorded under section 164 Cr.P.C. before the learned Magistrate that the petitioner-Kamaluddin and others persons were directly involved in abducting and kidnapping the victim girl. Learned counsel for the informant has submitted that earlier lower court records were also called for and from the lower court records it is evident that the victim girl has categorically made allegation against all the four accused persons. I have also heard Mrs. Indu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State, who has supported the stand taken by Mr. Yogendra Kumar, learned counsel for the informant. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on the record particularly the statement of the victim, which was recorded under section 164 Cr.P.C. On the lower court records, case diary was not available. 6 Moreover, while hearing a petition under section 482 of the Cr.P.C., in a case where order of cognizance is under challenge, it is not desirable for this court to insist for calling for the case diary and examine the case diary. So far as materials available on record particularly the statement of the victim girl recorded under section 164 Cr.P.C. is concerned, I have perused the same which makes it clear that the petitioners were directly involved in the occurrence for which the learned Chief Judicial Magistrate has taken cognizance. However, this court is of the opinion that the learned Magistrate, at the time of passing order after submission of the final form, was not required to look into the protest petition filed by the complainant/informant or he was not required to hear the arguments advanced on behalf of the accused persons but at the same time for this error impugned order in the present case cannot be set aside since this court is satisfied that there were materials on record to proceed with the case. So far as stand taken by the learned counsel for the petitioners that there were no materials in the case diary which was refuted by the learned counsel for the informant is concerned, this court is of the view that the same can be looked into at appropriate stage particularly at the stage of charge. It is expected that at the stage of charge the learned Magistrate will examine the entire materials on the record and thereafter will proceed with the case. 8. In view of the aforesaid facts and circumstances of the case, I am of the view that it is not a fit case for exercising 7 Patna High Court The 10th August, 2010 Md.S./NAFR inherent power in favour of the petitioners and, accordingly, both the petitions stand rejected. 9. In view of rejection of the petitions, orders of stay granted by this court stand automatically vacated. 10. Let a copy of this order be sent to the court below. Office is directed to remit back the lower court records forthwith. (Rakesh Kumar,J.)