PHULENA PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner for quashing the order dated 7.4.99 passed by the Sub -divisional Judicial Magistrate, Gopalganj in Complaint Case no. 2084/98 dismissing the complaint of petitioner u/s 203 of Code of Criminal Procedure (in short, Cr.P.C.) and the order dated 31.7.99 passed by the 2nd Addl. Sessions Judge, Gopalganj in Cr. Revision No. 106/99 affirming the aforesaid order of S.D.J.M., Gopalganj.

(2.) THE brief facts giving rise to this application are that the petitioner filed a complaint petition in the court of Chief Judicial Magistrate, Gopalganj against opposite party nos. 2 and 3 and two unknown persons under sections 363, 364, 365/34 of the Indian Penal Code (in short, I.P.C.) on the allegation of kidnapping his son Dharmendra Kumar. The learned C.J.M., Gopalganj made over the case to the court of S.D.J.M., Gopalganj under section 192(1) Cr.P.C. for enquiry and trial. The learned S.D.J.M. took statement of complainant on S.A. and also recorded statements of four other witnesses produced by complainant under section 202 Cr.P.C. Thereafter the learned S.D.J.M. by his order dated 5.1.99 (Annexure -A series of counter affidavit) by observing that : "All the witnesses adduced by the complainant are family members of the complainant and no independent witness has been cited as witness in this case" and also "Considering the nature of the alleged offence and serious nature of the case and evidence adduced by the complainant" held that before any further proceeding it was necessary to call for a report from the Officer - in -charge of Baikunthpur Police Station regarding the alleged occurrence with a direction to search out the victim Dharmendra Kumar, who was still then traceless. The Officer -in -charge of Baikunthpur P.S. submitted his report (Annexure -C of counter affidavit). Thereafter the learned S.D.J.M. by his impugned order dated 7.4.99 by taking into consideration the police report dismissed the complaint of the petitioner under section 203 Cr.P.C. Against this order the petitioner filed a Cr. Revision No. 106/99 which was heard and decided by 2nd Addl. Sessions Judge, Gopalganj who by his order dated 31.7.99 upheld the order passed by learned S.D.J.M., Gopalganj and dismissed the revision. The petitioner is, therefore, before this Court assailing the aforesaid orders passed by the learned S.D.J.M. and learned 2nd Addl. Sessions Judge, Gopalganj.

(3.) THE learned counsel on behalf of opposite party nos. 2 and 3 has first of all raised the question of maintainability of this application. Relying upon a decision of the Supreme Court in the case of Jagir Singh V/s. Ranbir Singh and Another (AIR 1979 SC 381) he has submitted that once the petitioner exercised his option to move the Sessions Court in a criminal revision against the order passed by the learned S.D.J.M., Gopalganj he is precluded u/s 397 (3) Cr.P.C. from raising the same matter before this Court. The facts of the present case are different from the facts of the case relied upon by the learned counsel on behalf of opposite parties. In the present case the application is not for revision. The Supreme Court in the case of Krishnan and Another V/s. Krishnaveni and Another [(1997) 4 S.C.C. 241] has held as follows : "10. "Ordinarily, when revision has been barred by section 397 (3) of the Code, of a person -accused/complainant -cannot be allowed to take recourse to the revision to the High Court under section 397(1) or under inherent powers of the High Court under section 482 of the Code since it may amount to circumvention of the provisions of section 397(3) or section 397(2) of the Code. It is seen that the High Court has suo motu power under section 401 and continuous supervisory jurisdiction under section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under section 397(1) read with section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously."