RAM PRASAD HALWAI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present application has been preferred under 378(4) of the Code of Criminal Procedure for getting Special Leave to Appeal against the judgment and order dated 17th July 2012 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in Complaint Case No. 1998 of 2007 whereby the complaint case filed by the petitioner has been dismissed. The complaint case was filed by the complainant-petitioner before the Chief Judicial Magistrate, Dhanbad for allegedly committing an offence under Sections 147 /341 /427 /447 /379 /34 of the Indian Penal Code against Opposite Party Nos. 2 to 8. The case of the complainant-petitioner, as per the complaint petition, is that opposite party No. 2 to 8 (original accused nos. 1 to 7) forming an unlawful assembly, armed with deadly weapons, entered into the tank, belonging to the complainant-petitioner and started catching fish, reared by the complainant-petitioner and when the complainant-petitioner protested the same, opposite party No. 2 to 8 used filthy language and threatened him to kill.

(2.) Counsel for the petitioner has submitted that though there is provision for statutory appeal under the newly inserted proviso to Section 372 of the Code of Criminal Procedure, as the petitioner is the complainant, he has preferred this appeal for grant of Special Leave to Appeal under Section 378(4) of the Code of Criminal Procedure. Counsel for the petitioner has pointed out several aspects of the matter based upon the evidence recorded by the trial Court and has submitted that Special Leave to Appeal may kindly be granted because there are several errors on the facts and law, committed by the trial Court.

(3.) Counsel for the State-A.P.P. has taken a preliminary objection as to statutory provision is provided under Section 372 Code of Criminal Procedure, but Special Leave to Appeal may not be granted to the petitioner and let the right of statutory appeal be exhausted and thereafter they may come to this Court. The learned A.P.P. also submitted that the provisions of Code of Criminal Procedure has been amended with effect from 31st December, 2009 based upon 154th report of the Law Commission of India. It is submitted by the A.P.P. that whenever statutory provision of preferring an appeal is given by law, the remedy must be exhausted first and, thereafter, they can approach this Court. The learned A.P.P. has also taken analogy from writ petition preferred under Article 32 of the Constitution of India for violation of fundamental rights and in those cases, normally the Hon'ble Supreme Court is sending the petitioners to the concerned High Courts under Article 226 of the Constitution of India. Similarly, against the judgment and order of learned Single Judge of the High Court, whenever Letters Patent Appeal is tenable, normally Special Leave to Appeal under Article 136 of the Constitution of India is not granted. Similarly, counsel for the State has relied upon decisions rendered by the Full Bench of Hon'ble Patna High Court in Syed Zafrul Hassan Vs. State, 1986 PLJR 274 that whenever there is a concurrent jurisdiction for grant of anticipatory bail i.e. both by the Sessions Court as well as by the High Court, normally the anticipatory bail applications should be preferred before the Sessions Court. In view of this analogy, it is submitted by the counsel for the State that in the facts of the present case, the parties are not remedy-less. They have a right to prefer an statutory appeal against the very judgment of the Judicial Magistrate, Dhanbad before the Sessions Court, Dhanbad. Thus, the Special Leave to Appeal may not be granted to the petitioner. Counsel for the State has also pointed out that whenever victim is also the complainant himself, then in all such cases statutory provision of Section 372 of the Code of Criminal Procedure should be resorted to and whenever the complainant is not the victim like the cases in which the complainant is Income-tax Officer or the officer of the Labour Department, or the Officer of the Food Adulteration Department, in all those cases, complainant and the victims are different persons, in those cases, instead of preferring an appeal under Section 372 of the Code of Criminal Procedure, they can prefer an application under Section 378(4) of the Code of Criminal Procedure for getting Special Leave to Appeal. But whenever the complainant and the victim are the same person, then statutory right of preferring appeal must be availed first and in those circumstances, without preferring an appeal under Section 372 of the Code of Criminal Procedure, Special Leave to Appeal under Section 378(4) of the Code of Criminal Procedure may not be entertained by this Court.