Criminal Appeal No. 15 of 2016 (Arising out of SLP (Crl) No. 975 of 2015). Case: Awadesh Kumar Jha and Ors. Vs The State of Bihar. High Court of Madras (India)

Case NumberCriminal Appeal No. 15 of 2016 (Arising out of SLP (Crl) No. 975 of 2015)
CounselFor Appellant: Akhilesh Kumar Pandey, Adv. and For Respondents: Samir Ali Khan, Adv.
JudgesT.S. Thakur, C.J.I. and V. Gopala Gowda, J.
IssueImmoral Traffic (Prevention) Act, 1956 - Sections 3, 4, 5, 6, 7; General Clauses Act, 1897 - Section 26; Code of Criminal Procedure, 1973 (CrPC) - Sections 154, 155, 156, 157, 162, 169, 170, 173, 173(2), 173(8), 239, 300, 482; Indian Penal Code 1860, (IPC) - Sections 419, 420; Constitution of India - Articles 20(2), 19, 21, 226, 227
Judgement DateJanuary 07, 2016
CourtHigh Court of Madras (India)

Judgment:

V. Gopala Gowda, J.

  1. Leave granted.

  2. This criminal appeal is directed against the impugned judgment and order dated 14.10.2014 passed by the High Court of Judicature at Patna in Crl. Misc. No. 13700 of 2014 whereby it has refused to interfere with the impugned orders therein. Both the Appellants filed application Under Section 239 of Code of Criminal Procedure, 1973 (for short the "Code of Criminal Procedure") before the learned Judicial Magistrate of first class, Kishanganj in relation to FIR No. 183 of 2008. The same was dismissed on the ground of being devoid of merit vide order dated 04.12.2013. The Court of Sessions, Purnea, in revision petition, has upheld the decision of the learned Judicial Magistrate of first class which has further upheld by the High Court. The correctness of the said order is challenged in this appeal urging various grounds.

  3. Brief facts of the case are stated hereunder to appreciate the rival legal contentions urged on behalf of the parties:

    On 04.05.2008 FIR No. 111 of 2008 (for short the "first FIR") was registered at Kishanganj police station against both the Appellants along with other persons for the offences punishable Under Sections 3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956 (in short "the Act") on a written complaint made by Sub Divisional Police Officer Ravish Kumar, Kishanganj, Bihar. The allegation made therein was that on the telephonic information received from SDPO Phulwari sharif, Patna regarding the confinement of a minor girl Rubana Khatun, aged about 16 years, in red light area of Khagaria for the purpose of carrying out the flesh trade, the raiding party of police authorities conducted a raid in the house of Sisa Khalifa. In the course of such raid, the raiding party found six couples in objectionable position in six different rooms. Along with others the Appellant No. 1 (Akhilesh Kumar Jha) and Appellant No. 2 (Ajit Prasad) were also arrested in the course of the raid and they were booked for offences punishable Under Sections 3, 4, 5, 6 and 7 of the Act.

  4. The first FIR was investigated by the investigating officer and the report Under Section 173 of Code of Criminal Procedure was filed before the Chief Judicial Magistrate (for short "CJM") for taking cognizance of the offences alleged against them. The learned CJM, Kishanganj took cognizance of the alleged offences vide his order dated 06.08.2008.

  5. In the meantime, both the Appellants moved applications for grant of bail. It is alleged that in those bail applications both the Appellants furnished wrong information regarding their names, father's name and address.

  6. On the written complaint of Shri Arvind Kumar Singh, the Inspector of Police, Kishanganj police station another FIR No. 183 of 2008 (hereinafter referred to as the "second FIR") dated 03.07.2008 was registered against both the Appellants for the offences punishable Under Sections 419 and 420 of Indian Penal Code, 1860 (for short "Indian Penal Code"). The allegations made therein were that both the Appellants furnished wrong information to the investigating officer regarding their names, father's name and address during the course of investigation made on the first FIR and also in the bail applications filed by them before the learned CJM in the case arising out of first FIR.

  7. The second FIR was investigated by the investigating officer and a report Under Section 173 of Code of Criminal Procedure was filed before CJM, Kishanganj for taking cognizance of the offences alleged against the Appellants. The learned CJM took cognizance of the alleged offences vide order dated 11.09.2008.

  8. The Appellants filed revision petitions before the Additional Sessions Judge, Purnea against the first order of cognizance dated 06.08.2008, passed by CJM, Kishanganj. The learned Additional Sessions Judge, Purnea vide order dated 18.12.2010 has set aside the said order of cognizance passed by CJM, Kishanganj holding that no offence Under Sections 3, 4, 5, 6 and 7 of the Act as alleged in the first FIR is made out against the Appellants.

  9. Thereafter, the Appellants filed an application Under Section 239 of Code of Criminal Procedure before Judicial Magistrate of first class, Kishanganj seeking their discharge from the offences alleged in the second FIR. The learned Judicial Magistrate of first class, Kishanganj after a perusal of material on record found no merit in the application Under Section 239 of Code of Criminal Procedure filed by them and accordingly dismissed the same vide his order dated 04.12.2013.

  10. Being aggrieved of the order dated 04.12.2013 passed by the learned Judicial Magistrate of first class, the Appellants approached the Court of Sessions, Purnea by filing the Criminal Revision Petition No. 12 of 2014. The learned Sessions Judge, Purnea concurred with the findings recorded in the impugned order passed by the learned Judicial Magistrate of first class, Kishanganj and dismissed the said revision petition vide order dated 03.02.2014.

  11. The Appellants being aggrieved of the order dated 03.02.2014 passed by learned Sessions Judge, Purnea filed Crl. Misc. No. 13700 of 2014 before the High Court of Judicature at Patna for quashing of the said order.

  12. The learned Single Judge of the High Court of Patna vide order dated 14.10.2014 dismissed the said petition holding that at present case is surviving against the Appellants which has arisen out of the second FIR and the criminal proceedings arising out of first FIR has already been set aside. The learned Single Judge did not find any merit in the said petition filed before her and she accordingly dismissed the same with a direction to the Trial Court to conclude the trial expeditiously. Hence, this appeal with request to set aside the same and allow the application made Under Section 239 of Code of Criminal Procedure by the Appellants seeking their discharge of the offences alleged in the second FIR.

  13. Mr. Akhilesh Kumar Pandey, the learned Counsel on behalf of the...

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