MUNESHWAR YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) By the Court. In this application, the petitioner has challenged the order, dated 7.12.1998 passed by the learned 7th Addl. Sessions Judge, Bhagalpur, in Cr. Rev. No. 198 of 1998 whereby he has directed the Court below of its successor- in-office to act in terms of Section 323, Cr PC after setting aside the order dated 24.4.1995 passed by the learned Magistrate refusing to amend the charges. Mr. Pandey, learned Counsel appearing on behalf of the petitioner has submitted that the order passed by the learned Additional Sessions Judge is wholly illegal and uncalled for inasmuch as the revision application in the Court below was itself not maintainable being an interlocutory order. It is further submitted that the, charge has been framed in the year 1990 and no effective step has been taken by the prosecution to conclude the trial, albeit there is no latches on the part of the defence. Learned Counsel has partly submitted that the revisional Court has no jurisdiction to direct the Magistrate to after the charges and commit the case to the Court of Sessions.

(2.) In order to appreciate the argument of Mr. Pandey some relevant facts, which are necessary for disposal of this application are that the informant lodged an FIR on 19.9.1988 against the accused- petitioners and after usual investigation charge-sheet was submitted under Sections 143, 144, 435 and 426 of the IPC and accordingly the cognizance of the offence was taken against the accused-persons on 8.1.1990. The charge was framed on 6.6.1990 under the aforesaid provisions of law. On 24.4.1991, one witness was examined, cross-examined and discharged. The case was adjourned from time to time till 20.6.1992 when one other witness was cross-examined and discharged. Thereafter, the prosecution evidence was closed on 29.8.1992. The case was fixed for hearing in absence of any stay order. Meanwhile, the informant filed a petition praying therein to after the charge to 436, IPC which was kept pending for long. The informant thereafter filed an application before the High Court which was registered as Cr. Misc. No. 5825 of 1994. While disposing of the aforesaid Cr. Misc. application the trial Court vide order dated 26.10.1994 was directed to dispose of the petition for amendment of charge filed by the informant in accordance with law. Pursuant to the direction aforesaid, the learned Magistrate heard the matter and rejected the petition filed by the informant which was the subject- matter of challenge before the learned Sessions Judge as stated above. In the light of the aforesaid fact the first submission of Mr. Pandey to the effect that the order being an interlocutory one no revision is maintainable is not sustainable in the eye of law and as such the particular issue, namely in the instant East Cr C (3) 126(HC) case, the question of amendment of the charge, has been finally decided by the Magistrate, it cannot be said to be an interlocutory order. As regards the second submission of Mr. Pandey that the prosecution has not taken any effective step for conclusion of the trial since 1990 inspite of the sufficient opportunity given to the prosecution, the Court below should have closed the prosecution case particularly when there is no latches on the part of the accused. The submission has to be rejected merely on the ground that the proceeding was pending in the High Court till 1994, when the trial Court was directed to dispose of the amendment petition filed by the informant and pursuant to the said direction the learned Magistrate has passed the order in 1995, which was challenged in revision and ultimately the said order of the learned Magistrate was set aside vide order dated 7.12.1998, which is under challenged in the instant Cr. Misc. application. Similarly the last submission of Mr. Pandey is wholly misconceived and has to be rejected. The learned Judge on consideration of the evidence led on behalf of the prosecution, has come to the conclusion that a prima facie case is made out under Section 436, IPC and accordingly directed the learned Magistrate to act in terms of Section 323 of the Code of Criminal Procedure. The learned Sessions Judge is vested with the power of revision under Sections 397 and 399 of the Code of Criminal Procedure for issuing such directions. Now, coming to the merit of the case, two witnesses have been examined on behalf of the prosecution before the learned Magistrate who have fully supported the case of the prosecution, so far the charge under Section 436 of the Indian Penal Code is concerned.

(3.) The revisional Court has considered the evidence of witnesses and came to the conclusion that a prima facie case under Section 436, IPC, is made out against the accused-persons and, as such, Court cannot interfere with such finding which is based upon correct appraisal of the evidence on record. That apart, this Criminal Misc. application, which is in the nature of second revision, is itself not maintainable before this Court. In view of the bar created under sub-section (3) of Section 399 of the Code of Criminal Procedure.