RINKU MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application in revision has been filed under sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 20.4.1996 passed by Shri Anil Kumar Singh, Judicial Magistrate, 1st Class, Patna in complaint Case No. 137/94 by which he rejected the complaint petition filed by the petitioner under section 203 the Code.

(2.) IT appears that the present petitioner filed a complaint petition in the court of the Chief Judicial Magistrate, Patna making out various allegations against the opposite party. The case was numbered as Complaint Case No. 170 -C/93. The learned Chief Judicial Magistrate referred the matter to the police under section 156(3) of the Code. The police registered Kadamkuan P.S. Case No. 188/93. In the meantime, the petitioner could learn that the police was in collusion with the opposite party and life accordingly filed a protest -cum -complaint petition in the court of the Chief Judicial Magistrate, Patna. The police submitted final form in the said case after which the petitioner -complainant was examined on solemn affirmation on 1.10.1994. The case was posted for enquiry under section 202 of the Code in which four witnesses were examined. Before, however, the petitioner could file a complaint petition in the court he was arrested by the police at the instance of the opposite party and Kadamkuan P.S. Case No. 116/93 was instituted against him in which he was also put under arrest. The learned Judicial Magistrate, however, dismissed the complaint petition of the petitioner under section 203 of the Code by a detailed order in which the learned Magistrate has taken into consideration the F.I.R. lodged by the opposite party and also the defence taken by them. It is well settled that at the stage of section 203/204 of the Code the court has only to see whether from the statement of the complainant made on solemn affirmation and on the basis of the statement of the witnesses recorded under section 202 of the Code if a prima facie case against the accused persons is made out the cognizance has to be taken. At this stage the court is not to scrutinise meticulously the evidence adduced by the complainant nor could the Magistrate take into consideration the defence taken by the accused. The Magistrate has only to find out prima facie case at this stage. On these grounds amongst others it has been contended that the impugned order be quashed and further enquiry under section 398 of the Code be ordered.

(3.) EVEN otherwise it is well settled that the court can exercise the power under section 397 of the Code even suo motu to prevent the perpetuation of illegality and miscarriage of justice as held in the case of Municipal Corporation of Delhi vs. Girdharilal and others (A.I.R. 1981 S.C. 1169). In order to attract the provisions of section 397 if any illegality, impropriety in any finding, sentence or order is brought to the notice of the court it is sufficient to set the court in motion even suo motu without anybody applying for the same. The moment the attention of the court is drawn to an illegal or improper order it bcomes the bounden duty of the court to correct the same. Even in this back -ground the labelling of the petition is hardly of any consequence.