GHAN SHYAM KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application has been filed for quashing the order dated 13. 6. 2005 passed by learned 6th Additional Sessions judge, Patna in Misc. Case No. 1/2004 whereby and where under he had directed to file complaint case against the petitioner as per requirement of Section 340 of Code of Criminal Procedure [in short as Code] in the Court of Chief Judicial Magistrate, patna. During the pendency of the present application there was certain development and thereafter the petitioner filed I. A. No. 29/2007 praying therein to quash the complaint Case No. 1387 (c) of 2006 as contained in Annexure-4 to the application which was lodged by Sri R. N. Sharma, learned 6th Additional Sessions Judge against the petitioner.

(2.) SHORTLY stated the case of O. P. No. 2, savita Kumari, is that she was married to the petitioner Ghan Shyam Kumar on 16. 12. 1999. On 7. 8. 2001 she filed complaint case No. 1449 [c]/2001 in the Court of Chief judicial Magistrate, Patna for offence punishable under Section 498-A of the Penal code. After enquiry cognizance was taken and processes were issued against Ghan shyam Kumar, his father Shivjee Prasad and mother Shakuntala Devi. The accused surrendered in the Court of Sub-Divisional judicial Magistrate, Patna for bail but their prayer was rejected and thereafter they filed b. P. Nos. 2959/2002 and 4919/2002 in the court of learned Sessions Judge, Patna. Both the bail petitions were transferred to the court of 6th Additional Sessions Judge, patna for disposal. In both bail petitions certified copy of informatory petition dated 10. 4. 2001 allegedly filed by Ghan Shyam kumar in the Court of learned Sub-Divisional Magistrate, East, Muzaffarpur was filed. The Opposite Party No. 2 on suspicion that such informatory petition was forged and fabricated one filed a petition under section 340 of the Code in the Court of Chief judicial Magistrate, Patna which was registered as complaint case No. 581c/2003. The said petition was transferred to Shri manoj Kumar Sinha, Judicial Magistrate, 1st Class, Patna for enquiry and disposal. Learned Magistrate conducted enquiry and by order dated 16. 7. 2004 dismissed the said case on the ground that the said forged and fabricated petition had not been filed in his court rather the same was filed in the Court of 6th Additional Sessions Judge, Patna and hence he is not competent to file that case. Thereafter Opposite Party No. 2 filed Misc. Case No. 1/2004 under Section 340 of the code on 28. 8. 2004 in the Court of 6th Additional Sessions Judge, Patna for filing complaint case against the petitioner for misleading the Court by annexing a forged document in B. P. Nos. 2959/2002 and 4919/ 2002. Show cause notice was issued to the petitioner. In reply to show cause the petitioner stated that a similar case on similar allegation has been rejected by Shri Manoj kumar Sinha, Judicial Magistrate, 1st class, Patna and the said informatory petition was genuine and not forged one. Learned 6th Additional Sessions Judge, patna thereafter conducted enquiry and by order dated 13. 6. 2005 found a prima facie case against petitioner under Sections 192 and 193 of the Penal Code and accordingly, filed complaint case mentioned above against the petitioner, in the Court of Chief judicial Magistrate, Patna. 2. It was contended on behalf of the petitioner that learned 6th Additional Sessions judge, Patna failed to consider that the copy of Court fee register and the filing register makes it clear that informatory petition was filed in the Court of Sub-Divisional Magistrate, East, Muzaffarpur by the petitioner and the Copying Department had issued certified copy of that informatory petition on payment of proper Court fee on the basis of requisition filed on behalf of the petitioner for obtaining the certified copy. The said certified copy of informatory petition so issued by the Sub-Divisional Magistrate, east, Muzaffarpur was filed on behalf of the petitioner along with bail petition. It was further argued that learned Additional Sessions Judge also failed to notice that Opposite Party No. 2 had filed a complaint case in this regard earlier in the Court of learned chief Judicial Magistrate, Patna. The said petition was numbered as complaint case no. 581c/2003. Shri Manoj Kumar Sinha, judicial Magistrate, 1st Class, Patna vide his order dated 16. 7. 2004 dismissed the complaint case in exercise of his power under Section 203 of the Code. Opposite Party no. 2 being the complainant did not challenge the said rejection before any higher court and thus, the order dated 16. 7. 2004 attained finality,

(3.) ON the other hand it was contended on behalf of Opposite Party No. 2 that after enquiry learned Additional Sessions Judge recorded a definite opinion that informatory petition is forged and has been used in the bail petition to take benefit. The disputed question of fact is not a ground for quashing the present criminal case. It was further contended that defence of the accused cannot be considered at this stage.