SUBODH SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONER / complainant is aggrieved by the order dated 03.07.2009 passed by Additional Sessions Judge, Vth, East Champaran at Motihari in Cr. Revision No.53 of 1997 / 14 of 2008 whereby and whereunder the learned revisional court set aside the order dated 16.01.1997 passed by Sri O.P. Sinha, Judicial Magistrate, 1st Class, Motihari in Complaint Case No.1267 of 1996 in terms of Section 204 of the Cr.P.C. and remanded the matter with a direction to proceed in accordance with law.

(2.) IT has been submitted on behalf of petitioner that the finding recorded by the learned revisional court as is evident from para -6 and 7 of the order impugned is abrupt and based upon erroneous consideration because of the fact that by a catena of decisions, it has been settled at rest that proviso having under Section 202 of the Cr.P.C. requiring to examine all the witnesses while the offence so alleged appears to be triable by the court of Session, happens to be directory one. It has further been submitted that during course of an inquiry having under Section 202 of the Cr.P.C. only gist of the evidences is to be recorded and so, whenever there happens to be large number of accused, instead of name of all the accused, name of one of the accused and others are mentioned. Because of the fact that the witnesses happens to be before the Magistrate, therefore, the statement of the witness is perceived by the court during course of passing an order after concluding the inquiry. As such, the order of the learned revisional court appears to be suffering from unfounded conclusion as well as surmises. Also referred AIR 2010 SC 2261, 1988 PLJR 216, 1970 BLJR 642.

(3.) AT the other hand the learned counsel for the Opposite Party Nos.2 to 19 have submitted that purpose for holding an inquiry under Section 202 of the Cr.P.C. is to ascertain the truth which could justify the further step of learned Magistrate enabling him to issue process under Section 204 of the Cr.P.C. or to dismiss the same in accordance with Section 203 of the Cr.P.C. in case no prima facie case is found thereupon. It has also been submitted that for the same cause police case is also pending and in the aforesaid background the learned revisional court was fully justified in getting the matter remitted back to the learned lower court to proceed afresh in accordance with law after setting aside the order of issuance of process. The learned counsel also submitted that complainant had failed to produce prima facie evidence with regard to ownership of Plot No.111 having under dispute and so the learned lower should not have issued process against the Opposite Party No.s.2 to 19. It has further been submitted that the witnesses, who were examined during course of inquiry have not named all the O.Ps from 2 to 19 and on account thereof, summoning of those, who have not been named by the witnesses, have rightly been identified by the learned revisional court.