KAMLA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application filed under Sec. 482 of the Code of Criminal Procedure (in short as the Code) prayer has been made for quashing the Order dated, 25th September, 2006 passed by learned Additional Sessions Judge-F.T.C.V. Nalanda in Sessions Trial No. 549/2004, by which he has rejected the prayer for discharge of the Petitioner from the case. There is also prayer for quashing the Order dated, 19th April, 2004 passed in Complaint Case No. 110(c)/2004 corresponding to Tr. No. 523/2004 styled as Sheo Balak Prasad V/s. Smt. Karala Devi by which the learned Magistrate took cognizance under Sec. 211/34 of the Indian Penal Code against the Petitioner and others.

(2.) It appears that on 5th August, 1996 Petitioner filed a Petition a complaint vide Complaint Case No. 404c/96 in the Court of Chief Judicial Magistrate, Nalanda at Biharsharif against opposite Patty No. 2 and others for an occurrence which has allegedly taken place on 4th August, 1996, a copy of which was sent to the police under Sec. 156(3) of the Code for registration and investigation on the basis of which thepolice registered Bihar Sohsarai P.S. Case No. 349/96 under Section 364 of the Penal Code against opposite Party No. 2 and others and after concluding the investigation submitted final form as false. The learned Chief Judicial Magistrate accepted the final form as submitted by the police and Ordered that the case will proceed on the basis of protest Petition. It appears that the protest cum Complaint Case No. 797c/2003 was not pressed by the complainant Kamla Devi and accordingly the same was dismissed by Order dated, 5th September, 2003. Thereafter the opposite Party No. 2 Sheo Balak Prasad filed Complaint Case No. 110c/04 in the court of chief judicial Magistrate, Nalanda ai Biharsharif against Kamla Devi and others for offences punishable under Sections 182, 194, 195, 211, 500 and 120B of the Indian Penal Code. The complainant Sheo Balak Prasad was examined on solemn affirmation and altogether two witnesses were examined on his behalf during inquiry under Sec. 203 of the Code and the learned Magistrate by Order dated, 19th April, 2004 took cognizance under Sec. 211/34 against Smt. Kamla Devi and her husband and Ordered to issue summons against them. Thereafter the case was committed to the Court of Session and on transfer it was received in the file of Additional Sessions Judge cum F.T.C.V. Nalanda at Biharsharif. Before the said Court a petition was filed on behalf of the Petitioner to discharge her from the ease on the ground that cognizance taken in the case is barred under Sec. 195(1)(b) of the Code. The learned Additional Sessions Judge heard the matter and by the impugned Order dated, 25th September, 2006 rejected the prayer and posted the case for framing of change. Against the said Order dated, 25th September, 2006 the Petitioner has preferred the present application for quashing before this Court.

(3.) The submission of learned Counsel for the Petitioner is that cognizance taken in the instant case is bad, illegal and without jurisdiction as it has been provided in Sec. 195(1)(b)(i) of the Code that no Court shall take cognizance of the offence under Sec. 211 of the Penal Code when the offence is alleged to have committed in or relation to, any proceeding in any Court except on a complaint in writing of that Court of some other Court to which that Court is subordinate. As such cognizance for the offence under Sec. 211 of the penal code is barred. His further submission is that as the Court has no jurisdiction to try the case in view of Sec. 195(b)(i) of the code and as such the impugned Order dated, 25th September, 2006 passed by the Trial Court is also illegal. Learned Counsel in support of contention placed reliance on a decision given in the case of Kamalapati Trivedi V/s. The State of West Bengal, 1979 AIR(SC) 777 On the other hand, learned Counsel for opposite Party No. 2 supported to the impugned Order and submitted that Sec. 195(1)(b)(i) has no application in this case and in support of his contention, learned Counsel placed reliance on a decision of the Apex Court given in the case of Iqbal Singh Marwah and Anr. V. Meenakshi Marwah and Anr, 2005 4 SCC 370