Criminal Miscellaneous No.31545 OF 1999 ------ In the matter of an application under section 482 of the Code of Criminal Procedure. ------ 1.UGRA NARAYAN CHOUDHARY 2.Tara Kant Choudhary @ Bangailu Choudhary 3.Bala Kan Choudhary 4.Bodh Narayan Choudhary Sons of late Anant Choudhary 5.Suresh Choudhary @ Balku Choudhary son of late Ram Jiwan Choudhary. All resident of village-Sahuria, Andharatharhi, Dist.-Madhubani …… ……Petitioners Versus 1.STATE OF BIHAR 2.Raghuni Paswan son of late Sukan Paswan, resident of village-sahuria, P.S.-Andharathari, Dist.- Madhubani. ------ For the petitioners: M/s Vishwanath Prasad Sinha, Sr.Adv. Rajesh Kumar, Adv. For the State: Mrs. Indu Bala Pandey, Add.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------ Rakesh Kumar, J. Five petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 29.9.1999 passed by the Sessions Judge, Madhubani in Cr. Revision No.440 of 1999. By the said order the learned Sessions Judge has set aside the order dated 6.7.1999 passed by learned Additional Chief Judicial Magistrate, Jhanhharpur, and remanded back the matter to the court of learned Magistrate with a direction to give a fresh consideration of the matter and pass proper order as provided under the law. 2. Short fact of the case is that opposite party no.2 2 filed a complaint vide Complaint Case No.33 of 1999 on 11.1 1999 alleging therein that while he along with others was performing Puja by reciting Bhajan, the accused persons arrived there. They abused and assaulted them addressing the complainant and their men by their caste name. In the said occurrence, it was alleged that the accused persons forcibly took away Mirdang and Jhal amounting to Rs.700/- (rupees seven hundred). The complaint petition was filed for offences under sections 147, 323, 342, 307, 504 and 448 of the Indian Penal Code and section 3(x) of the Scheduled Castes/ Scheduled Tribe (Prevention of Atrocities) Act. After filing of the complaint, the complainant was examined on solemn affirmation and in support of the complaint four witnesses were examined at the enquiry stage. The learned Additional Chief Judicial Magistrate after completing the enquiry and examining the materials brought on record did not take cognizance either under sections 147, 342, 307, 504, 448 of the Indian Penal Code or section 3(x) of the SC/ST Act. However, the learned Additional Chief Judicial Magistrate was prima facie satisfied that offence under section 323 of the Indian Penal Code was made out and thereafter the learned Magistrate took cognizance of the offence and transferred the case for disposal to the court of Sri R.S. Shukla, Judicial Magistrate, 1st Class, Jhanjharpur by its order dated 6.7.1999. 3. Since the learned Magistrate had refused to take cognizance for the offences as mentioned in the complaint petition, particularly for violation of the provisions of SC/ST Act, 3 the complainant filed a revision vide Cr. Revision No.440 of 1999. The said revision was allowed by order dated 29.9.1999 passed by the learned Sessions Judge, Madhubani. While allowing the revision application the learned Sessions Judge set aside the order dated 6.7.1999 passed by the learned Additional Chief Judicial Magistrate, Jhanjharpur and remanded back the record to the court of learned Magistrate with a direction to examine the materials afresh. 4. Aggrieved with the order of revisional court dated 29.9.1999 passed in Cr. Revision No.440 of 1999, the petitioner has approached this court by filing the present petition. This petition was admitted on 29.2.2000 and, while admitting the case, this court ordered for issuance of notice to opposite party no.2 and further directed that pending disposal of this application, further proceedings in the court below shall remain stayed. In this case despite issuance of notice and even after lapse of several years, opposite party no.2 has not chosen to appear and defend his case and, as such, in absence of any representation on behalf of opposite party no.2, the case is finally being disposed of after hearing learned counsel for the petitioner and the State. 5. Mr. Vishwanath Prasad Sinha, learned Senior Counsel appearing on behalf of the petitioner, while challenging the impugned revisional order, submits that while taking cognizance under section 323 of the Indian Penal Code and refusing to take cognizance under the provision of SC/ST Act, the learned Additional Chief Judicial Magistrate had examined the 4 materials available on record in detail and by assigning detailed reasons he had passed the order dated 6.7.1999. The learned Magistrate had categorically examined the statement of the complainant recorded on solemn affirmation as well as evidence of four witnesses, who had supported the case of the complainant. He submits, particularly while referring to the statement of the complainant recorded on solemn affirmation, which is annexure-2 to the petition, that though in the complaint petition an assertion was made that at the time of occurrence the accused persons had abused the complainant with his caste name but while deposing before the learned Magistrate, he had not whispered in respect of offence under the SC/ST Act. Even the allegation relating to theft was not in consonance with the statement made in the complaint petition. Similarly, learned counsel for the petitioners has argued that the order passed by the learned Magistrate categorically makes it clear that the evidence of the witnesses were not consistent and had said nothing regarding offence committed under the SC/ST Act. On the basis of materials brought on record, the learned Magistrate had rightly refused to take cognizance of the offence under section 3 and 4 of SC/ST Act. 6. Learned Senior Counsel for the petitioners has also argued that the order of revisional court is liable to be set aside only on the ground of non-compliance of the principle of natural justice. He submits that, while allowing the revision, the learned Sessions Judge had not even bothered to examine as to whether notices were issued to the petitioners or not and in 5 absence of petitioners, the learned Sessions Judge had passed the order which was adverse to the interest of the petitioners. He submits that on this ground alone, the order of revisional court is liable to be set aside. 7. Mrs. Indu Bala Pandey, learned Additonal Public Prosecutor, has appeared on behalf of the State and opposed the prayer of the petitioners. 8. Besides hearing learned counsel for the parties, I have also examined the complaint petition, the statement of the complainant, order dated 6.7.1999 passed by the Additional Chief Judicial Magistrate, Jhanjharpur and order dated 29.9.1999 passed by the learned Sessions Judge, Madhubani. After going through the materials available on record, it is evident that the complainant, though in the complaint petition had described many things but during recording of his statement on solemn affirmation had not stated as it was alleged in the complaint petition. On examining the order of learned Additional Chief Judicial dated 6.7.1999, it is also clear that the learned Magistrate had examined the entire materials, which were brought before him, and after assigning detailed reason had passed the order of cognizance under section 323 of the Indian Penal Code and refused to take cognizance under section 3 and 4 of the SC/ST Act and other provisions which were alleged in the complaint petition. In view of detailed discussion in the order of learned Additional Chief Judicial Magistrate, I am of the view that there was no requirement to interfere with the said order. However, without noticing or 6 hearing the petitioners, who were going to be directly affected with the said order, the learned Sessions Judge has allowed the revision petition. It also appears from the perusal of order dated 29.9.1999 that the learned Sessions Judge was acting as if he was exercising the appellate power. In sum and substance, the learned Sessions Judge, while exercising revisional power, had virtually exceeded its jurisdiction and contrary to the finding of the learned Magistrate has allowed the revision petition that too in absence of the petitioners. In view of the facts and circumstances of present case, I am of the view that the order of learned Sessions Judge is not in accordance with law and is liable to be set aside. 9. Accordingly, the order dated 29.9.1999 passed by learned Sessions Judge, Madhubani is hereby set aside and the petition stands allowed. Patna High Court The 17th May, 2010 NAFR/Md.S. ( Rakesh Kumar, J.)