CRIMINAL MISCELLANEOUS No.4646 OF 2000 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. CHANDRA KALA DEVI WIFE OF DHANESHWAR MAHTO @ DHANESHWAR SINGH. 2. KUSUM KUMARI DEVI WIFE OF SHRI KAMESHWAR MAHTO. 3. BHALSARI DEVI WIFE OF SHRI LAXMI MAHTO. ALL ARE RESIDENTS OF VILLAGE CHHORAHI, POLICE STATION BABU BARHI, DISTRICT MADHUBANI. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. ANIL PRASAD SINGH SON OF SHITAL PRASAD SINGH, RESIDENT OF VILLAGE CHATRA, POLICE STATION KHAJAULI, DISTRICT MADHUBANI. ... ... OPPOSITE PARTIES. ---- For the Petitioners : Mr. Binit Kumar, Adv. 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. Three petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 20.1.1993 passed in Complaint Case No.21 of 1990 by Shri M. Siddiqui, Judicial Magistrate, Ist Class, Madhubani. By the said order, the learned Magistrate, while exercising power under Section 319 of the Code of Criminal Procedure, on the prayer made by the complainant, had summoned the petitioners to face trial along with other 2 accused persons. The petitioners further pray for quashing of an order dated 17.9.1999 passed by 4th Additional Sessions Judge, Madhubani in Cr. Revision No.188 of 1993, whereby the revision petition preferred by petitioners against the order dated 20.1.1993 was rejected. 2. Short fact of the case is that the opposite party no.2 filed a complaint vide Complaint Case No.21 of 1990 arraying the petitioners as Accused Nos.4, 5 and 6 along with other three accused persons. After filing of the complaint petition, examination of complainant on S.A. and examining witnesses as enquiry witnesses, the learned Magistrate, by its order dated 4.12.1990, took cognizance of offence under Sections 147, 447, 323, 506 and 379 of the Indian Penal Code only against three male accused persons and directed for summoning three named accused persons. Meaning thereby that the learned Magistrate did not take cognizance of offences against these petitioners. 3. At pre-charge stage, after some witnesses were examined, a petition was filed 3 on behalf of the complainant for summoning these petitioners on the ground that witnesses before charge, had deposed showing complicity of petitioners also. The learned Magistrate, by its order dated 20.1.1993, allowed the petition filed by the complainant and while exercising power under Section 319 of the Code of Criminal Procedure, directed for issuance of summon against the petitioners to face trial along with other accused persons. 4. Aggrieved with the order dated 20.1.1993 passed by the learned Magistrate, as advised, the petitioners filed a revision vide Cr. Revision No.188 of 1993, which stood dismissed on 17.9.1999. Against the order dated 17.9.1999 passed in Cr. Revision No.188 of 1993 as well as against the order dated 20.1.1993, the petitioners filed the present petition. On 19.1.2001, while issuing notice to opposite party no.2, this Court directed that in the meantime, further proceeding against the petitioners only in the court below shall remain stayed and subsequently, on 11.2.2002, the case was admitted for hearing. While admitting, this Court noticed 4 that in spite of service of notice on opposite party no.2, nobody had chosen to appear on his behalf. This Court had also directed that during the pendency of this application, interim order passed on 19.1.2001 shall remain operative and order of stay is still continuing. Even at the time of hearing of the present petition, none has come forward on behalf of opposite party no.2. 5. Shri Binit Kumar, learned counsel appearing on behalf of the petitioners, while challenging both the orders i.e. order of revisional court as well as the order dated 20.1.1993 passed by the Judicial Magistrate, Ist Class in Complaint Case No.21 of 1990, has argued that once after enquiry in the present complaint, the learned Magistrate was satisfied that no offence was made out against the petitioners, at subsequent stage, while exercising power under Section 319 of the Code of Criminal Procedure, the learned Magistrate was not required to summon the petitioners for facing trial. Learned counsel for the petitioners submits that in view of Section 319 of the Code of Criminal Procedure 5 only those persons were required to be summoned, who were not an accused before the court. It was submitted that since in the complaint petition accusation against these petitioners were made and enquiry was conducted and after examination of enquiry witnesses, the learned Magistrate did not summon these petitioners, it will be deemed that the petitioners were accused in the complaint case. Though petitioners were made accused, the learned Magistrate, on the basis of materials available on record, did not summon these petitioners and as such the petitioners were accused and, accordingly, under Section 319 of the Code of Criminal Procedure, at subsequent stage, the learned Magistrate was not authorized to summon these petitioners. Learned counsel for the petitioners, while raising aforesaid ground, has relied on the judgment of this Court reported in 2004(2) PLJR 225 (Rama Devi Vs. State of Bihar). This Court in Rama Devi’s case (Supra) had considered this point in detail and while passing judgment, it was held that power under Section 319 of the Code of Criminal Procedure was not available for 6 summoning a person, who were already accused. This Court had examined earlier two judgments of Hon’ble Supreme Court reported in AIR 1983 SC 595 (Dr. S.S. Khanna Vs. State of Bihar) and AIR 1990 SC 2158 (Sohan Lal Vs. State of Rajasthan). This Court in Rama Devi’s case (Supra) had distinguished the case of Dr. S.S. Khanna and preferred to rely on the judgment passed in Sohan Lal’s case (Supra). 6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor, appears on behalf of the State and she has opposed the prayer of the petitioners. However, she has not disputed the law settled by this Court in Rama Devi’s case (Supra). 7. In view of the settled principle of law as indicated above, there is no option but to quash the order dated 20.1.1993 passed in Complaint Case No.21 of 1990 by Shri Md. Siddiqui, Judicial Magistrate, Ist Class, Madhubani. In ordinary course, this Court does not entertain a quashing application after rejection of criminal revision, but in view of the peculiar facts and circumstances of the present case as well as in view of law settled by Hon’ble Supreme Court as well as 7 this Court, it is necessary to quash even order dated 17.9.1999 passed by the 4th Additional Sessions Judge, Madhubani in Cr. Revision No.188 of 1993. 8. Accordingly, both the orders i.e. order dated 17.9.1999 passed by the 4th Additional Sessions Judge, Madhubani in Cr. Revision No.188 of 1993 and order dated 20.1.1993 passed in Complaint Case No.21 of 1990 passed by Shri M. Siddiqui, Judicial Magistrate, Ist Class, Madhubani are hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 29.7.2010 N.A.F.R./N.H.