Birendra Narain Singh v. State Of Bihar — 1989 DIGILAW 238 (PAT)

Judgment Uday Sinha, J. 1. This is an application under Sec. 482 of the Code of Criminal Procedure (hereinafter to be called the Code) for quashing-order dated 10-11-1982 passed by Shri H.G. Mittal, (Chief Judicial Magistrate Samastipur by which coginizance of offences under Sections 147, 322, 342/109 of the Indian Penal Code was taken and processes were issued against the petitioners The case was thereafter transferred to the Court of Shri M.P. Shrivastava, Judicial Magistrate, 2nd Class, Samastipur for trial and disposal. Cognizance has been taken on the basis of a police report in Rosera P.S. Case No. 76 of 1981 which had been registered as G.R. Case No. 870 of 1981. 2. One Brahamdeo Narain Singh has four sons, namely, Shashi Shekhar Prasad Sinha, Surya Shekhar Prasad Sinha, Indu Shekhar Prasad Sinha and Bidhu Shekhar Prasad Sinha. Petitioners 1 and 2 are sons of Shashi Shekhar Prasad Sinha and petitioners 3 and 4 are sons of Surya Shekhar Prasad Sinha. Opposite Party No. 2 is the son of 3rd brother Bidhu Shakher P rasad Sinha. The parties thus come up from a common stock. 3. On 21-4-1981 at about 7 A.M. the petitioners besides Smt. Manni Singh, wife of petitioner No. 1 and Smt. Krishna Kuthari Devi, mother of petitioners 1 and 2 had proclaimed at the Datwaza of Thakurji that they would put up a Bhimkar and if any body objected, they would finish all, father as well as the sons. At about 11 A M on the some day all the accused persons armed themselves started putting up Bhuskar per force. Oh protest by the informant and his men, the accused assaulted them. After giving this report Devendra Narain Singh proceeded to the hospital to get the injury treated On the basis of that report, the police instituted Rosera P.S. Case No. 76/81, as stated above. The case was instituted on 21-4-1981. The charge-sheet was submitted on 17-10-1982. The learned Magistrate took cognizance of the offences on 10-11-1982 and issued processes against the petitioners. 4. The petitioners having been summoned to stand trial, have moved this Court for quashing their prosecution initiated by order dated 10-11-1982. 5. Learned Counsel for the petitioners submitted that the investigation of the case not having been concluded within six months, it must be deemed to have been stopped in terms of Sec.167(5) of the Code. 4. The petitioners having been summoned to stand trial, have moved this Court for quashing their prosecution initiated by order dated 10-11-1982. 5. Learned Counsel for the petitioners submitted that the investigation of the case not having been concluded within six months, it must be deemed to have been stopped in terms of Sec.167(5) of the Code. The submission of charge-sheet after six months was, therefore, illegal and taking Of cognizance on that charge-sheet was also illegal and without jurisdiction. The second submission urged on behalf of the petitioners is that the offences alleged to have been committed being triable by Gram Kutchery, learned Chief Judicial Magistrate has no jurisdiction to take cognizance of the offences and the trial Court has no jurisdiction to try the case. The third submission urged on behalf of the petitioners is that in terms of Sec. 468(2)(sic) of the Code, no cognizance of the offences could have been taken. 6. The last submission has absolutely no substance and may be disposed of here and now. Sec. 468(2)(c) of the Code is relevant for1 the purpose of deciding whether the taking of cognizance was barred by limitation. In this connection the provisions of Sec. 468(2)(c) of the Code are relevant one. Cognizance has been taken of offences under Sections 147, 323 and 342 of the Indian Penal Code. The maximum sentence which may be imposed for commission of offence under Sec.147 of the Penal Code is two years. Thus taking of cognizance would not be barred by him. Sec. 468(2)(c) of the Code provides that the period of limitation shall be three years if the offence is punishable for a term exceeding one year, but not exceeding three years. In that view of the mutter, taking of cognizance was not barred by the provisions of Sec. 468(2)(c) of the Code. 7. The submission which has occasioned reference of this case to a Division Bench is that in terms of Sec.167(5) of the Code, the investigation not having been completed within six months the investigation should have been stopped and the learned Magistrate could not have taken cognizance of the offence without the matter being re-opened by the order of the learned Sessions Judge. A decision of a Single Judge of this Court in the case of Niladri Shekhar Bajpayee V/s. State of Bihar 1987 BBC J 490 was placed into service by the learned Counsel for the petitioners. S.N. Jha, J., referred the matter to a Division Bench for deciding the correctness of the decision of the said single Judge decision. 8. Sec.167(5) of the Code provides that where the investigation is not concluded within a period of six months, in a summons case, from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence. A similar submission found favor with L.P.N. Shahdeo, J., in the case of Nil adri Shekar Bajpayee (supra) and His ordship quashed the order taking cognizance. 9. In this connection it will be apt to appreciate that Sec.167(5) of the Code enjoins a Magistrate to make an order stopping further investigation. It does not debar a Magistrate from taking cognizance. The provisions which debar a Magistrate from taking cognizance are contained in Chapter XIV of the Code. Chapter XIV covers Sections 190 to 199. There is no provision in this Chapter that the Magistrate shall not take cognizance if a charge-sheet is not submitted in a summons case within six months. A Magistrate takes cognizance in terms of Sec.190(1)(b) read with Sec.204 of the Code. Sec.204 of the Code lays down that a Magistrate may issue process, if there are sufficient grounds for proceeding. Thus the provisions of Sec.167(5) of the Code cannot be held to be mandatory. 10. Whether a person should be put on trial or not has to be decided by a Court and not by the police. The legal process cannot be throttled by the police. In that view of the matter, even if a police report/charge-sheet is not submitted within six months, it will be open to the Magistrate to call for the case diary and upon perusing it, if he finds that there are materials which call for issuance of process against the accused, the Magistrate will be fully justified in issuing process. For this reason also, I am of the view that the provisions of Sec.167(5) of the Code is not mandatory. 11. The question fallen for consideration arose before Delhi High Court in the case of State V/s. Jai Bliagwan 1985 Cr. For this reason also, I am of the view that the provisions of Sec.167(5) of the Code is not mandatory. 11. The question fallen for consideration arose before Delhi High Court in the case of State V/s. Jai Bliagwan 1985 Cr. LJ 932, That was a case where the accused had been acquitted on the ground that the cognizance of the offence was taken without the permission of the Magistrate upon a police report which has been filed more than six months after the arrest of the accused where the investigation has proceeded beyond the period of six months from the date of arrest. In the present case, the trial has not proceeded but it is at the initial stage. To this extent Delhi case is distinguishable from the case before us but what significant observation has been made by Delhi High Court is that the only result of taking of cognizance beyond six months would be that the Magistrate could look into only such materials which have been procured within six months of the arrest of the accused. 12. In C. Bhaskaran Nair V/s. State of Kerala and Ors. 1987 Cr. LJ 170 the accused had been acquitted on the ground that charge-sheet had been submitted more than six months after the arrest of the accused. This was also a case where the content of Sec.167(5) of the Code fell for consideration after the accused had been acquitted. In that case, the investigation was complete within six months from the date of surrender but the charge-sheet had not been filed. In that situation, Kerala High Court held that taking of cognizance by the Magistrate was not illegal I am in respectful agreement with the views of Kerala High Court. In the instant case, we do not know the extent of progress in the police investigation till the six months period had expired. 13. There is yet another aspect of the matter to be taken into consideration Sec.167(5) of the Code leaves the matter open to the Magistrate to extend the time for investigation in the interest of justice. That being the provision, the Magistrate having taken cognizance after the fixed period, he may very well be within his jurisdiction to exercise his discretion permitting continuance of investigation especially when no order has been passed stopping investigation. That being the provision, the Magistrate having taken cognizance after the fixed period, he may very well be within his jurisdiction to exercise his discretion permitting continuance of investigation especially when no order has been passed stopping investigation. For the reasons indicated above, I am of the view that taking of cognizance was not barred in terms of Sec.167(5) of the Code. 14. A question may well arise if a Magistrate is not precluded from taking cognizance upon a police report in a summons case, what is the purpose of Sec.167(5) of the Code. Learned Counsel for the petitioners contended that if the decision of the Single Judge was not right, it would amount to ignoring the provisions. I regret, that is not the effect. Sec.167 occurs in Chapter XII which deals with "information to the police and their powers to investigate". Sec.167(5) of the Code thus places a restraint upon the police. That provision may well have been enacted where the police has been dilly dallying within the investigation and may be squeezing the accused or the complainant drip-dry. To prevent that situation, the Magistrate has been vested with the powers to stop the investigation. If the investigation has revealed material till then, the Magistrate would be free to take cognizance upon the materials obtained during the aforesaid period of six months but if the investigation has not revealed any material showing the complicity of the accused in the crime within six months of his arrest. he should not be harassed any further. The harassment may arise on account of his being asked to be present in Court every fortnight That is the efficacy of Sec.167(5) of the Code but it cannot override the provisions of Chapter XIV of the Code. In my view, therefore, the decision of the learned Single Judge in the case of Niladri Shekhar Bajpayee (supra) is not sound. It is accordingly overruled. 15. The last submission in regard to the jurisdiction of the Magistrate to try the offence as the offences of which cognizance has been taken were triable by a Bench of Gram Kutchery has substance and must succeed. Sec. 62 of the Bihar Panchayat Raj Act, 1947 enjoins a Bench of the Gram Kutchery to try offences under Sections 147, 323, 342 of the Indian Penal Code etc. Sec. 62 of the Bihar Panchayat Raj Act, 1947 enjoins a Bench of the Gram Kutchery to try offences under Sections 147, 323, 342 of the Indian Penal Code etc. It is now well established that a Judicial Magistrate has no jurisdiction to try the offences enumerated in Sec. 62(1)(a) of the Bihar Panchayat Raj Act, 1947 (herein after to be referred to as the Act) unless the case falls within any of the Proviso to that Section The Provisos do not come into play in the instant case. In that view of the matter taking of cognizance and issuance of process by a Judicial Magistrate was barred. To that extent this application must succeed. 16. I, however, find on the record that there is a protest petition in which prayer has been made to take cognizance of the offences under Sections 307, 338, 325, 323, 448, 148 and 147 of the Indian Penal Code. The prayer in that petition is to treat the protest petition as a petition of complaint. Annexed to the complaint are some medical certificates Medical certificate in respect of Ram Kishan Singh shows that he had received grievous injury as well as a fracture was revealed in the 9th rib If there are materials in which process may issue, the provisions of Sec. 62 of the Act will not be a bar to the issuance of process against the accused. 17. In my view, therefore, taking of cognizance upon the police report was without jurisdiction as it was barred by Sec. 62 of the Act but the Magistrate will apply himself to the protest-cum-complaint petition of the complainant and dispose it of in accordance with law. 18. In the result, this application is allowed with the above observation. The impugned order taking cognizance dated 10-11-1982 is hereby quashed.