RAM CHANDRA VERMA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) By Court: In this application, petitioners prayed for quashing of order dated 19.03.2001 in T.R. No. 665 of 2001 corresponding to P.C.R. No. 56 of 1999, whereby the learned Judicial Magistrate, Dumka, on being satisfied that prima facie offences under Sections 147, 323, 342, 449, 452/34 of the I.P.C. are made out against petitioners, issued summon against them. Sans unnecessary particulars facts of the case lies in a narrow compass. It appears that Dumka P.S. Case No. 166 of 1998 dated 06.12.1998 was instituted, on the information of Vimal Kumar Modi against petitioners and two others. It further appears that police after investigation submitted charge sheet against two accused namely Sanjay Verma and Lalu Verma. However, petitioners were not sent up for trial. It appears that the then Chief Judicial Magistrate, Dumka vide order dated 22.02.1999, took cognizance against, the aforesaid two accused Sanjay Verma and Lalu Verma under Sections 302, 324/34 and 552 of the I.P.C. and by the same order discharged petitioners. It is relevant to mention that against the aforesaid order of learned Chief Judicial Magistrate, Dumka, informant; filed an application under Section 482 of the Cr.P.C. before the Hon'ble Patna High Court, Patna vide Criminal Misc. No. 27612 of 1999. The said application disposed of by Hon'ble Patna High Court vide order dated 27.01.2000. Operative portion of the aforesaid order reads as under -

(2.) In view of aforesaid order of Patna High Court, informant filed an application before the Chief Judicial Magistrate, Dumka on 07.11.2000, praying therein that protest petition filed by him be considered and disposed of in accordance with law. It appears that learned Chief Judicial Magistrate transferred the case in the file of learned court below. Thereafter learned court below passed impugned order and issued summons to the petitioners, as according to him prima facie offences under Sections 147, 323, 342, 449, 452/34 of the I.P.C. are made out.

(3.) Sri A.K. Kashyap, Sr. Advocate appearing for the petitioners, submits that the order of Patna High Court is illegal because petitioners, who were discharged by the then Chief Judicial Magistrate, Dumka, have not been heard by the Patna High Court, which is mandatory according to the proviso of Section 398 of the Cr.P.C. Accordingly, he submits that follow up action of aforesaid illegal order is also illegal, therefore, cannot be sustained. He further submits that even assuming that the aforesaid order is legal then also impugned order cannot be sustained. He submits that Patna High Court directed the Magistrate to pass order on the protest petition in accordance with law. He submits that at the time of passing of impugned order original case has already been committed to the court of Sessions and thereafter Sessions Case No. 235 of 1999 had already been instituted. He submits that after commitment of the case to the court of Sessions, it is not open to Magistrate to exercise power under Section 204 (1) (b) of Cr.P.C. and issue summons to other accused persons. Accordingly he submits that the impugned order is wholly without jurisdiction and against the law, therefore, the same is not in consonance with the direction of Patna High Court.