Sk. Jamaluddin v. State Of Bihar — 1980 DIGILAW 70 (PAT)

Judgment U.C.Sharma, J. 1. This is an application on behalf of the accused persons for quashing the order dated the 12.09.1979, passed by the Chief Judicial Magistrate, Katihar, taking cognizance of the case against the petitioners. 2. It appears that on the 9.03.1979, the complainant, Mr. Tahir (opposite party No. 2) filed a complaint before the Chief Judicial Magistrate Katihar, against the accused persons (petitioners) alleging that on the 7.03.1979, at 2 p.m., while he was coming from his Samdhi, accompanied with his son, and reached near the house of the accused persons, the latter asked him to execute a sale deed with respect to certain lands. On refusal, he was tied to a pole. His son asked the accused person to release his father but they did not listen and gave out that he would be implicated in another case. 3. On the same day the complainant was examined on solemn affirmation. The case was referred to the Block Development Officer, Balrampur, for investigation. The Block Development Officer after investigation submitted a report to the effect that the case was false. On the 12.09.1979, the Chief Judicial Magistrate considered the report of the Block Development Officer and passed the impugned order. 4. Learned Counsel appearing in support of the application contended that there was no protest petition against the report of the Block Development Officer, and, therefore, there was no material before the learned Chief Judicial Magistrate for discarding the report; it was next contended that the learned Chief Judicial Magistrate, while passing the impugned order, took into consideration the statements of the accused, which is illegal Learned Counsel, in support of the contention, relied on, Jumrati Mian V/s. Bishehswar Prasad Vishwakarma, AIR 1967 Pat 561. In that case, it appears, the Magistrate had heard the accused persons at the stage of inquiry under Sec.202 of the Code of Criminal Procedure (hereinafter referred to as the Code). It was held by this Court relying on a case decided by the Supreme Court in Chandra Deo Singh V/s. Prakash Chandra Bose -- , that the order of the Magistrate was bad. It was held by this Court relying on a case decided by the Supreme Court in Chandra Deo Singh V/s. Prakash Chandra Bose -- , that the order of the Magistrate was bad. His Lordship quoted with approval a passage from the said Judgment of the Supreme Court which is as follows: We may point out that since the object of an enquiry under Sec.202 is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under Sec.203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under Sec.202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this. It is clear that the above decision of the Supreme Court confined the materials which alone may be taken into consideration for the purpose of deciding whether or not there is sufficient ground for proceeding. It specifically exclude the other materials,which also include the case made out by or on behalf of the accused person or any statement made by him. 5. Learned Counsel appearing for the opposite party, however, referred to the definition of the expressioninvestigation, as contained in Sec.2 (h) of the Code. He submitted that investigation is a proceeding for the purpose of collecting evidence conducted by a police officer and in the course of the said investigation he is entitled to record the statements of the accused and, therefore, when Sec.202 of the Code refers to investigation, it has to be understood in the sense of the word Investigation as defined. Learned Counsel also referred to Sub-section (3) of Sec.202 of the Code which reads thus; If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer incharge of a police station except the power to arrest without warrant. Learned Counsel strongly relied upon the expression all the powers conferred by this Code on an officer incbarge of a police station... Learned Counsel strongly relied upon the expression all the powers conferred by this Code on an officer incbarge of a police station... and contended that the person making an investigation under Sec.202 of the Code shall have all the powers of police officer as mentioned in Sec.161 of the Code, Sec.161(1) is in these terms: Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Learned Counsel submitted that since a person making investigation under Section 202 of the Code shall have all the powers of a police officer, he would be entitled under Sec.161 to examine any person, which, according to the learned Counsel, is wide enough to cover the accused person as well, 6. prima facie , the argument is attractive, but, on closer examination, I do not find any substance in it. The object of investigation under Chapter XII of the Code, namely, investigation by police in a case instituted before it, and the one contemplated in Sub-section (3) of Sec.202 of the Code, is not the same. The expression the person holding investigation shall have all the powers of an officer incharge of a police station have to be construed within the frame-work and in the light of the provisions of Sec.202. It may be pointed out that Sec.202 refers to a stage after cognizance has been taken in the case. Investigation, thereafter, is designed for the purpose of issuing process against the accused and to that purpose alone the officer investigating the case under Sec.202 has to direct his attention. Whereas under Chapter XII of the Code the entire matter is at large before the investigating authority who is entitled to collect materials from any quarters whatsoever bearing on the truth or otherwise of the allegations made against the accused. It is clear that the scope of the two investigations is quite different. 7. The scope of investigation, as referred to above, was considered by their Lordships of the Supreme Court in Devarapalli Lakshmi Narayan Reddy V/s. Narayana Reddy. -- . It is clear that the scope of the two investigations is quite different. 7. The scope of investigation, as referred to above, was considered by their Lordships of the Supreme Court in Devarapalli Lakshmi Narayan Reddy V/s. Narayana Reddy. -- . Their Lordships considered the provisions of Section 202 both before and after the amendment of the Code in 1973 side by side and held that "the distinction between a police investigation ordered under Section 156(3) and the one directed under Sec.202 has also been maintained under the new Code." It was observed: Sec.156(3) occurs in Chapter XII, under the caption: Information to the police and their powers to investigation; while Sec.202 is in Chapter XV which bears the heading, of complaints to Magistrate. The power to order police investigation under Sec.156(3) is different from the power to direct investigation conferred by Sec.202(1). The two operate in distinct spheres at different stages. The first is exercisable at the precognizance stage, the second at the post cognisance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the Commission of a cognizable offence, the power under Sec.156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Sec.190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Sec.156(3). It may be noted further that an order made under Sub-section(3) of Sec.156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary power of investigation under Sec.156(1)- Such an investigation embraces the entire continuous process which begins with the collection of evidence under Sec.156 and ends with a report or charge sheet under Sec.173. On the other hand. Sec.202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Sec.202 to direct, within the limits circumscribed by that section, an investigation for the purpose of deciding whether or not there is sufficient ground for proceedings. In such a situation, the Magistrate is empowered under Sec.202 to direct, within the limits circumscribed by that section, an investigation for the purpose of deciding whether or not there is sufficient ground for proceedings. Thus the object of an investigation under Sec.202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. 8. In view of the above pronouncements by the Supreme Court on the interpretation of the expression investigation and the scope of it as contained in Sec.202 of the Code, it is simply idle to say that the investigation under this section should be construed in the light of the provisions of Chapter XII of the Code. It would thus appear that the scope of the investigation under Sec.202 is the same as it was before the amendment of the Code. Before the amendment of the Code it was almost a settled law that in such investigation or enquiry under Sec.202 the accused person had no say in the matter at that stage. In these circumstances, the contention of the learned Counsel for the petitioners that the learned Magistrate took into consideration the statement of the accused and the F.I.R. filed by him in another case must be deemed to be matters extraneous to the consideration at this stage, I think, has a good deal of substance and must be accepted. 9. Learned Counsel appearing for the opposite party relied on the case of Mathew Zechariah V/s. State of the Kerala, wherein the High Court observed that any person used in Sec.161 of the Code includes an accused person. That case relied on an earlier Division Bench case of that Court which, in its turn, had relied on the famous case of the Privy Council in Pakale Narayan Swami V/s. Emperor, AIR 9939 PC 47. The facts of the case of Pakala Narayan Swami were different. In that case, it appears, a person had initiated the case and ultimately it transpired that he was himself an accused. That is not the position here, and, therefore, the wide interpretation, as given by learned Counsel on the scope of investigation under Sec.202 of the Code relying on these cases, is not acceptable. 10. It was also contended that it was wrong to say that the learned Magistrate relied on the statements of the accused. That is not the position here, and, therefore, the wide interpretation, as given by learned Counsel on the scope of investigation under Sec.202 of the Code relying on these cases, is not acceptable. 10. It was also contended that it was wrong to say that the learned Magistrate relied on the statements of the accused. He read the statements of the accused before me but the impugned order itself shows that the statement of Jamaluddin, one of the accused, has been referred to, as also the F.I.R. in his case, and, therefore, the argument, in my view, has no substance. 11. Having heard the learned Counsels and considered the argument advanced by them, I am satisfied that the impugned order suffers from serious legal infirmities and is fit to be quashed. Allowing the case to proceed would, in the circumstances, amount to abuse of the process of the Court. 12. In the result, the application is allowed and the impugned order dated 12.09.1979 passed by the Chief Judicial Magistrate, Katihar, is quashed.