Khurshid Ahmad, and ors. Vs. - Court Judgment

Excerpt:
[mr.j.s.khehar, chief justice ; mr. justice a.s. pachhapure, j.j.] these writ petitions are filed under article 226 of the constitution of india praying to quash the order passed by gov't. in no.hud 21 mnu 93 dtd. 11.08.93 at annexure,-l. and the memo issued by corporation bearing no.b12(9) pr 210/93 94 dtd. 6.9.93 at annexure -m & etc.1. rakesh kumar,j. sixteen petitioners, while invoking inherent jurisdiction of this court under section 482 of the code of criminal procedure, have prayed for quashing of the order dated 2.6.1999 passed by learned judicial magistrate, 1st class, aurangabad in complaint case no. 312 of 1999. by the said order the learned magistrate took cognizance for the offences under sections 147, 452, 341, 323 and 504 of the indian penal code against all the accused persons. however, in addition to the aforesaid charges the learned magistrate took cognizance for the offence under section 380 of the indian penal code against petitioner nos. 1, 2, 3 and 9 and directed for issuance of processes for securing attendance of the accused persons.2. short fact of the case is that opposite party no.2 filed a complaint case vide complaint case no.312 of 1999 in the court of chief judicial magistrate, aurangabad alleging therein that on the date of occurrence on trivial matter the accused persons variously armed entered into the house of the complainant and he and family members were assaulted by the accused persons. it was alleged that in the said occurrence some articles were also forcibly removed by the accused persons. on those allegations the complaint petition was filed. after filing of the complaint petition, the complainant was examined on solemn affirmation, witnesses were examined and some documents were also produced by the complainant during enquiry. the learned magistrate after examining the materials which were brought by the complainant by its order dated 2.6.1999 took cognizance for the offences as mentioned above.3. mr.sajid salim khan, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that on perusal of the compliant itself it appears that the allegations are not probable particularly in view of the fact that even entire family members of the petitioners were made accused. he submits that it is not believable that young girls of the family of the petitioners will participate in such occurrence. 4. learned counsel for the petitioner further submits that the present complaint was counter blast to the complaint which was earlier filed by petitioner no.4 and accordingly he submits that the present complaint was filed maliciously. he submits that on the ground of improbability as well as on the ground of malicious prosecution this court may set aside the order of cognizance. mr.parmanand prasad, learned a.p.p. appearing on behalf of the state opposed the prayer of the petitioners. he submits that the complaint petition categorically discloses commission of offence and the learned magistrate while taking cognizance has examined the entire materials and thereafter the order of cognizance was passed.5. besides hearing learned counsel for the parties, i have also examined the materials available on the record. it appears from the records that after the order of cognizance was passed, some of the petitioners filed a petition for recall of that order which was rejected on 14.6.1999. thereafter, a revision petition was filed vide cr.revision no.21 of 1999 against the order dated 14.6.1999 whereby the learned magistrate had rejected the prayer of the petitioners for recalling of the order of cognizance. the revision petition was heard by learned additional sessions judge- iii, aurangabad and by assigning a detailed reason the learned additional sessions judge-iii, aurangabad by its order dated 7.8.1999 rejected the petition filed by the petitioners. on examination of materials available on the record, i am of the view that while taking cognizance the learned magistrate has committed no error. moreover, in sum and substance the order of cognizance was challenged by the petitioners by way of filing a revision petition which too stood rejected. after rejection of the revision petition, the petitioners in the garb of filing a petition under section 482 of the code of criminal procedure has virtually filed a second revision which is not permissible under section 397(3) of the code of criminal procedure.6. however, without recording any finding on the maintainability of the present case, on the basis of materials available on the records of the case, i am not inclined to exercise inherent power in favour of petitioners and accordingly, the petition stands rejected. in this case while admitting the present petiton by order dated 23.2.2000 this court had called for the lower court records and also directed that pending disposal of this application, further proceeding in complaint case no.312 of 1999 pending in the court of sri r.p.asthana, judicial magistrate, 1st class, aurangabad, shall remain stayed. in view of rejection of the present petition, interim order of stay dated 23.2.2000 stands automtically vacated. office is directed to send back the lower court records which were received and are lying with records of the present case to the court below along with a copy of this order forthwith.

Judgment:
1. Rakesh Kumar,J. Sixteen petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 2.6.1999 passed by learned Judicial Magistrate, 1st Class, Aurangabad in Complaint Case No. 312 of 1999. By the said order the learned Magistrate took cognizance for the offences under sections 147, 452, 341, 323 and 504 of the Indian Penal Code against all the accused persons. However, in addition to the aforesaid charges the learned Magistrate took cognizance for the offence under section 380 of the Indian Penal Code against petitioner nos. 1, 2, 3 and 9 and directed for issuance of processes for securing attendance of the accused persons.

2. Short fact of the case is that opposite party no.2 filed a complaint case vide Complaint Case No.312 of 1999 in the court of Chief Judicial Magistrate, Aurangabad alleging therein that on the date of occurrence on trivial matter the accused persons variously armed entered into the house of the complainant and he and family members were assaulted by the accused persons. It was alleged that in the said occurrence some articles were also forcibly removed by the accused persons. On those allegations the complaint petition was filed. After filing of the complaint petition, the complainant was examined on solemn affirmation, witnesses were examined and some documents were also produced by the complainant during enquiry. The learned Magistrate after examining the materials which were brought by the complainant by its order dated 2.6.1999 took cognizance for the offences as mentioned above.

3. Mr.Sajid Salim Khan, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that on perusal of the compliant itself it appears that the allegations are not probable particularly in view of the fact that even entire family members of the petitioners were made accused. He submits that it is not believable that young girls of the family of the petitioners will participate in such occurrence.

4. Learned counsel for the petitioner further submits that the present complaint was counter blast to the complaint which was earlier filed by petitioner no.4 and accordingly he submits that the present complaint was filed maliciously. He submits that on the ground of improbability as well as on the ground of malicious prosecution this court may set aside the order of cognizance. Mr.Parmanand Prasad, learned A.P.P. appearing on behalf of the State opposed the prayer of the petitioners. He submits that the complaint petition categorically discloses commission of offence and the learned Magistrate while taking cognizance has examined the entire materials and thereafter the order of cognizance was passed.

5. Besides hearing learned counsel for the parties, I have also examined the materials available on the record. It appears from the records that after the order of cognizance was passed, some of the petitioners filed a petition for recall of that order which was rejected on 14.6.1999. Thereafter, a revision petition was filed vide Cr.revision No.21 of 1999 against the order dated 14.6.1999 whereby the learned Magistrate had rejected the prayer of the petitioners for recalling of the order of cognizance. The revision petition was heard by learned Additional Sessions Judge- III, Aurangabad and by assigning a detailed reason the learned Additional Sessions Judge-III, Aurangabad by its order dated 7.8.1999 rejected the petition filed by the petitioners. On examination of materials available on the record, I am of the view that while taking cognizance the learned Magistrate has committed no error. Moreover, in sum and substance the order of cognizance was challenged by the petitioners by way of filing a revision petition which too stood rejected. After rejection of the revision petition, the petitioners in the garb of filing a petition under section 482 of the Code of Criminal Procedure has virtually filed a second revision which is not permissible under section 397(3) of the Code of Criminal Procedure.

6. However, without recording any finding on the maintainability of the present case, on the basis of materials available on the records of the case, I am not inclined to exercise inherent power in favour of petitioners and accordingly, the petition stands rejected. In this case while admitting the present petiton by order dated 23.2.2000 this court had called for the lower court records and also directed that pending disposal of this application, further proceeding in Complaint Case No.312 of 1999 pending in the court of Sri R.P.Asthana, Judicial Magistrate, 1st Class, Aurangabad, shall remain stayed. In view of rejection of the present petition, interim order of stay dated 23.2.2000 stands automtically vacated. Office is directed to send back the lower court records which were received and are lying with records of the present case to the court below along with a copy of this order forthwith.