Abdul Halim Khan vs State Of Bihar And Ors

Heard Mr. Krishna Prasad Singh, learned Senior Advocate for the petitioner and Mr. Mrityunjaya Kumar Gautam, learned Additional Public

Prosecutor for the State.

This application under Section 482 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) has been filed by the petitioner for quashing the

order dated 17.04.2017 passed by the learned Judicial Magistrate, 1st Class, Gaya in G.O. No. 23 of 2009/ T. R. No. 40 of 2016 whereby the petition

filed on 30.01.2016 by one Dr. Nasim Ahmad under Section 311 of the Cr.P.C. has been allowed and the petitioner, who was examined as D.W. 5 in

the case, has been recalled for further cross-examination.

It would appear from the record that the petitioner Abdul Halim Khan @ Abdul Alim Khan had filed a complaint case in the court of Chief Judicial

Magistrate, Gaya on 31.03.2008 against Dr. Nasim Ahmad and two others. The said complaint petition was referred by the learned Chief Judicial

Magistrate, Gaya to Civil Lines Police Station under Section 156(3) of the Cr.P.C. for investigation pursuant to which Civil Lines P. S. Case No. 309

of 2008 dated 13.01.2008 was registered under Sections 341, 323, 379 read with 34 of the Indian Penal Code (for short ‘IPC’) against the

accused persons. On completion of investigation, the police submitted final form in the case showing the entire allegations levelled in the complaint

petition as false and concocted one and recommended to initiate a proceeding against the informant of the case under Sections 182 and 211 of the

IPC. Thereafter, G.O. Case No. 23 of 2009/TR No. 40 of 2016 was initiated against the petitioner. In the said case, the petitioner was examined on

29.09.2016 as a defence witness (D.W. 5) and after conclusion of the cross-examination, he was discharged on 27.10.2016. Ultimately, defence

evidence was closed and the case was fixed for hearing on 30.11.2016. However, on 30.01.2016, a petition was filed by Dr. Nasim Ahmad, who was

one of the accused in the aforesaid Civil Lines P. S. Case No. 309 of 2008 stating therein that due to unavoidable circumstances, on 22.05.2016,

nobody appeared on his behalf for cross-examination of D.W. 5. Hence, the said witness be recalled for cross-examination to meet the ends of justice,

which was allowed by the learned Judicial Magistrate vide impugned order dated 17.04.2017.

Mr. Krishna Prasad Singh, learned Senior Advocate for the petitioner submitted that the impugned order is patently bad in view of the fact that Dr.

Nasim Ahmad was neither complainant in the case nor on his complaint, the petitioner was being prosecuted in the G.O. Case. He had no locus standi

to file any petition. The learned Magistrate failed to appreciate that such a petition could not have been entertained even for a moment. It committed

gross illegality by allowing the petition and recalling the petitioner for cross-examination by Dr. Nasim Ahmad.

On the other hand, learned Additional Public Prosecutor for the State submitted that it was Dr. Nasim Ahmad against whom the petitioner had

lodged a police case, which was found false during investigation and, thus, it cannot be said that he had no locus standi in the matter. He submitted that

the court below committed no error while passing the impugned order.

I have heard learned counsel for the parties and perused the record.

From perusal of the impugned order dated 17.04.2017, it would be manifest that on 29.09.2016, the petitioner was cross - examined on behalf of the

prosecution and he was further cross - examined on 27.10.2016 and, thereafter, he was discharged. The court has recorded its satisfaction in the

impugned order that before discharge, he was fully cross-examined. However, without there being any cogent ground, the application filed on behalf

of Dr. Nasim Ahmad was allowed vide impugned order dated 17.04.2017.

Moreover, in view of the provisions prescribed under Section 195(1)(a) and 195(1)(b)(i) of the Cr.P.C. for the offences under Sections 182 and 211

of the IPC make it mandatory that a private person cannot initiate a proceeding against any person. The complaint is to be made in writing either by

the public servant or by the court concerned.

In G.O. Case No. 23 of 2009, Dr. Nasim Ahmad is not the complainant.

It is well settled that in a complaint case, necessary parties are the complainant and the accused. A person, who is neither the complainant nor an

accused, would have no locus standi to file a petition for summoning any person in exercise of power under Section 311 of the Cr.P.C. The

proceedings in a criminal case are to be conducted only in accordance with law. Any one, who desires to prosecute an accuse cannot be permitted to

participate in the proceedings and pray for summoning or recalling a witness.

In the opinion of this Court, the court below ought to have dismissed the said petition at the threshold. Apparently, the order impugned, if allowed to

continue would amount to an abuse of the process of the court.

In that view of the matter, the impugned order dated 17.04.2017 passed by the learned Judicial Magistrate, 1st Class, Gaya in G.O. No. 23 of

2009/ T. R. No. 40 of 2016 cannot be sustained. It is set aside, accordingly. The application stands allowed.