Jiwachch Prasad Sah v. State Of Bihar — 1990 DIGILAW 55 (PAT)

Judgment B. Prasad, J. 1. This is an application under Sec.482 of the Cods of criminal Procedure, 1973 (in short the Code. It is direcied against the order dated 30-4-1988/21-5-1988 passeed by the Chief judicial Magistrate, Samastipur in TR Case No.1144 of 1988 taking cognizance of the offence against the petitioners under Sections 147, 379 and 411 of the Indian Penal Code. This order of cognizance (Annexure-3) was passed on the basis of the charge-sheet (Annexure-2) submitted by the Police on the FIR (Annexure-1) lodged by the opposite panv No.2 The allegations against the petitioners were that at about 8 to 9 A. M. on 25-11-1987 they forcebly harvested and removed the standing paddy crops belonging to opposite party No 2 and at that time they were variously armed with weapons. Opposite party No 2 was put to a loss of rs.300/-. 2. From this petition it appears that there was a land dispute concerning plot No 496 (old), 741 (New) measuring 3 khatas which was recorded as bakast Mallik under Tauji No.1107 of Village Harishankar Pur Saghauni p. S. Tajpur. According to ths petitioners they had purchased this land in the year 1930 and in revisional survey the purcha with respect to this land was granted in their favour. As against it the case of opposite party No.2 was that this land, alongwith other lands, was purchased by him on 1-9-1973 and since then he was in its possession by growing crops over the same On 25-11-1987 at about 8 to 9 AM, ths petitioners variously armed with deadly weapon came over the disputed land and forcebly harvested aod removed the standing paddy crops worth Rs 300/-. Accordingly, the FIR (Aonexure-1)was lodged. The police after completing investigations, submitted charge-sheet (Annexure-2) against the present petitioners. By ths impugned order cognizance of the offence was taken against the petitioners. It is against this order that the petitioners have made a grievance. 3. They have conteudsd that the perusul of the FIR would show that the informant himself was not an eye witness. The allegation of deadly weapon is quite vague. Similarly vague is the allegation in the FIR about the patiiioaers joining in unlawful assembly. There is no allegation to constitute an offence under Sec.411 of the Indian Penal Code. Even the address of the witnesses have not been given. There has been delay of six hours in lodging the FIR. The allegation of deadly weapon is quite vague. Similarly vague is the allegation in the FIR about the patiiioaers joining in unlawful assembly. There is no allegation to constitute an offence under Sec.411 of the Indian Penal Code. Even the address of the witnesses have not been given. There has been delay of six hours in lodging the FIR. 4. It has been further contended that from the perusal of tha cass diary, it would appear that the informant (opposite party No.2 had failed to produce the document of title and possession with respect to the disputed land thereafter a reference has been made to various portions of the case-diary and the statements of the witnesses examined by the police. Ft has been submitted that from the perutal of the case diary and the statements of those witnesses it would appear that no prosecution witness had supported the prosecutions story as stated in the FIR. The witnesses examined by the police were the partisan witnesses always supporting the case of opposite party No.2. The 1. O. could not find the harvested paddy from the houses of the petitioners. Ramashish sah the vendor of opposite party No.2 had filed an objection under Section 103-A of the Bihar Tenancy Act against the petitioners before Survey authorities He lost the said case. There is no individual allegation against each of the petitioners. The allegations made against them are extremely vague. 5. While taking cognizance of the offence against the petitioners, the magistrate was duty bound to look into the case-diary to find out whether any prima facie case against them has been made out or not. He should have applied bis judicial mind to the statements made in the case diary to find out whether or not a prima facie case against the petitioners was made out. The learned Court below, however, has mechanically taken the cognizance of the offence without looking into the case diary and without applying his judicial mind. On the basis of the allegations made in the FIR (Annexure-1), no cognizance under Sec.411 of the Indian Penal Code could be taken. The petitioners were claiming the said land as their own. This oase was instituted as a counter blest to another case instituted by the petitioners on 26-2-1981. On the basis of the allegations made in the FIR (Annexure-1), no cognizance under Sec.411 of the Indian Penal Code could be taken. The petitioners were claiming the said land as their own. This oase was instituted as a counter blest to another case instituted by the petitioners on 26-2-1981. Under these circumstance, it has been prayed that the impugned order taking cognizance of the offence against the petitioners may be quashed. 6. This petition came up for admission before me. It has been opposed by the learned Counsel appearing on behalf of the State. It was the submission of the learned A. P. P. that the petitioners have not been able to make out any case for quashing the order taking cognizance of the offence against them. It has further been submitted that the police had investigated into the allegations made in the FIR and after finding those allegations to be correct, it submitted chargesheet in the case against the petitioners. Accordingly, the learned chief Judicial Magistrate took cognizance of the offence. He has also submitted that at the time of taking cognizance of the offence, the learned Chief judicial Magistrate was not obliged to look into the case diary. 7. At the time of the hearing, the learned Counsel Sri Jageshwar Prasad sinha. appearing on behalf of the petitioners has submitted that it was obligator on the part of the learned Magistrate taking cognizance of the offence to loci into the case diary The law dees not authorise him to take cognizance of the offeree without looking into the materials placed in the case dialy, including the statements of the witnesses. According to him if the police has submitted charge-sheet, but the perusal of the case diary including ihe statements ot the witnesses will show that no prima facie case has been made out against the accused, Magistrate should not have taken cognizance of the offence. in other words it was his submission that simply perusal of the MR and the charge-sheet by the Magistrate taking cognizatce of the offenc; is not enough to enable him to pass the order of cognizance. According to the learned Counsel, sri Sinha, the learned Magistrate taking cognizance ot the offence was invariably obliged to lock into the case diary before coming to the conclusion whether or not the cognizance of the offence should be taken. According to the learned Counsel, sri Sinha, the learned Magistrate taking cognizance ot the offence was invariably obliged to lock into the case diary before coming to the conclusion whether or not the cognizance of the offence should be taken. He has very emphatically urged bet ore me that invariably in any case the Magistrate cannot take cognizance of the offence on the basis of the charge-sheet alone without peiusing the case diary. It is only after, the Magistrate is satisfied by looking intu the materials collected in Course of the investigation that he can take cognizance of the offence on the basis of the charge-sheet submitted by the police. These contentions have been seriously challenged by the learned A. P. P. since, however, these contentions are of far reaching consequence, 1 purpose to examine them in detail. 8. In this connection firstly a reference may be made to Sec.190 of the Code which deals with taking of cognizance of offences by a Magistrate, it runs as follows: 190. Cognizance of offences by Magistrates (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence (a) Upon receiving a complaint of facts which constitute such offence ; (b) upon a police report of such facts ; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. 9. In the present case, the police has submitted a charge-sheet and the cognizance has been taken on its basis. From this it would appear that in the present case the cognizance was taken under Sec.190 (1) (b ). Now the question that would arise for consideration would be what would be the police report of such facts within the meaning of Sec.190 (1) (b; "the police report" has been defined in Sec.2 of the Code which runs as follows : " (r) Police report means a report forwarded by a Police Officer to a magistrate under sub-section (2) of Sec.173. " from this it would appear that the police report on the basis of which the cognizance could be taken by the Magistrate in terms of Sec.190 (1) (b)will mean a report that has been forwarded by the police, to a Magistrate under section 173 (2) of the Code. Sec.173 falls under Chapter XII of the Code which deals with the information to the police and their powers to investigate it is only after the completion of the investigation that a report under Section 173 is submitted. Sec.173 (2) clearly states that as soon as the investigation is completed, the Officer Incharge of the police station shall forward to a magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Go eminent stating various facts which have been mentioned in Clause (a) to (g ). Reading together the definition of the police report as given in Sec.2 (r) and the provision for taking cognizance on the basis of a police report as contained in Sec.190 (ixb), it becomes clear that the cognizance can be taken on the basis of informations to be furnished by the police as per Sec.173 (2) of the Code. This report of the police is popularly known as the charge-sheet or as the final report (so called)as the case may be. From this it would appaar that in exercise of the powers conferred on a Magistrate under Sec.190 (1) (b) of the Code, the cognizance has to be taken on the basis of the police report of such facts and this police report would be in terms of sub-section (2) of Sec.173. It is well-settled that "such facts as mentioned in Sec.190 (1) (b) relates to those facts which constitute as offence in Clause (a) as mentioned it this section. 10. In view of this position of law, the important question that arises for consideration would be whether for taking cognizance of the offence on police report, the Magistrate is obliged to look into the case-diary or not. A plain reading ot the provisions of law as mentioned aoove leaves no room for doubt that it is not mandatory for the Magistrate, taking cognizance of the olience, on the basis of a police report to look into the caste-diary. A plain reading ot the provisions of law as mentioned aoove leaves no room for doubt that it is not mandatory for the Magistrate, taking cognizance of the olience, on the basis of a police report to look into the caste-diary. From this it would follow that it would be open to the Magistrate to take cognizance of the offence on the police report on the basts of the FIR and the charge-sheet without looking into the case diary or the statements of the witnesses made before the police. Sri Sinha the learned Counsel for the petitioners has, however, seriously contended that under law it is mandatory for the Magistrate taking cognizance of the offence on the police report to look into the case diary. Unless he does so, he cannot take cognizance of the offence. It was also his submission that if the learned Magistrate after looking into the case diary finds that no case against the accused is made out, he has to refused to take cognizance of the offence inspite of the submission of the charge-sheet. He laid great emphasis on the point that invariably in every case the cognizance of the offence on the police report cannot be taken without perusal of the case diary. In support of his contention, the learned Counsel has placed reliance on the case of Kuli Singh V/s. The State, 1978 BBCJ 400 (S. B.) This contention of the learned counsel for the petitioners, however, appears to be without any merit and has to be rejected. 11. This will, however, not mean that in suitable cases the Magistrate taking cognizance of the offence is debarred from looking into the case diary. Oi Course in suitable cases he can look into the case diary in order to find out whether some other persons except those named in the charge-theet have or have not committed the offence alleged. He can also look into the case diary to find out whether any other offence except those for which the charge-sheet was submitted has been made out against the accused or not. It is, however, not possible to accept the contention of the learned Counsel for the petitioners that invariably in every cases the Magistrate taking cognizance of the offence must look into the case diary before passing the order of cognizance. The reasons are as follows, 12. It is, however, not possible to accept the contention of the learned Counsel for the petitioners that invariably in every cases the Magistrate taking cognizance of the offence must look into the case diary before passing the order of cognizance. The reasons are as follows, 12. I have already briefly referred to the necessary provisions of law as contained in the Code in this connection. So far as the case of Kuli Singh (supra) is concerned this decision does not help the learned Counsel for the petitioners. This is a special Bench decision of this Court in which the correct-ness of the decision in the case of Kailash Pandey and others V/s. The State of bihar and others, 1977 BBCJ 722 , was doubted. In this case a Division Bench of this Court after considering the provisions contained in Sec.190 of the old and the new Code observed as follows : "thus on a perusal of the two provisions it is absolutely clear that the word suspicion does not fined place in Sec.190 (1) (c) of the new Code. Therefore, Mr. Mishra has rightly contended that the only course left open to the Magistrate was to send the case for re-investigation under Sec.156 0), if he did not agree with the final report submitted by the police. In this view of the matter, the order of the learned Magistrate cannot be allowed to stand and must he set aside. . . . . . . . . " The correctness of this decision was doubted by another division Bench and finally the matter came before the special Bench of this Court and was decided. A perusal of this decision of Kuli Singh (supra) shows that the point convassed at the bar before the said Bench was that when police submits a report under section 173 of the Code after forming the conclusion that no offence has been committed or when it does not send any particular accused for trial, a magistrate is bound to accept it as such. The first thing to be noticed in this connection is that, in the said case the point for consideration was whether the magistrate could take cognizance of the offence against such persons who were not sent up for trial by the police and also of such offences for which no chargesheet was submitted. The first thing to be noticed in this connection is that, in the said case the point for consideration was whether the magistrate could take cognizance of the offence against such persons who were not sent up for trial by the police and also of such offences for which no chargesheet was submitted. It was not one of those cases in which the cognizance taken by the Magistrate on the basis of the charge-sheet submitted by the police was challenged on the ground that the said order of cognizance was passed with-outfperusal of the case diary. On behalf of the petitioners in the said case it was contended that "now after the enactment of the Code of 1973 where the police submits final report in terms of Sections 169 and 173 of the Code, a Magistrate was bound by the conclusions of the police. The special Bench had negatived this contention raised on behalf of the petitioners. The powers of the police vis-a- is oi the Magistrate in connection with the investigation of a case and the taking of the cognizance has been summarised in paragraph 8 of this judgment which may be usefully quoted. It runs as follows : "before considering tke submissions, urged on behalf of the petitioners it will be useful to remember that a Magistrate has ultimate control over police investigation. This is a basic concept. If it is forgotten, we are bound to go as try. The ultimate jurisdiction of deciding who will be put on trial is in the Magistrate and not in the police. In that sense it would not be in act to say that a Magistrate has ultimate control over investigation. The function of the police is to investigate and produce materials before a Court justiiyiag putting particular accused on trial. But no collusiveness can be conferred upon the action of the police. It is not for a moment suggested that there is any clash between the jurisdiction ot the police and the jurisdiction of a Magistrate. The two are complementary. . . . . . " 13. Is this decision a reference has been made to the case of Abhinandan jha V/s. Dinesh Mishra, AIR 1968 SC 117 . It is not for a moment suggested that there is any clash between the jurisdiction ot the police and the jurisdiction of a Magistrate. The two are complementary. . . . . . " 13. Is this decision a reference has been made to the case of Abhinandan jha V/s. Dinesh Mishra, AIR 1968 SC 117 . la this case it was held that the magistrate has no power to call for the charge-sheet from the police, but if he thinks that oa the basis of the facts stated in the final report, offence is made out he caa take cognizance under Sec.190 (1) (c) of the Code. Udai Sinha, j, delivered the leading judgment in this case (Kuli Singh (supra ). K. B. N. Singh, C. J in his concurring judgment has however, opined that even in the case of the final report, if the Magistrate takes the cognizance on its basis he can do so only in exercise of the powers under Sec.190 (1) (b) of the Code and not in exercise of the powers under Sec.190 (lj (c) of the Code, In this connection he has referred to the decision of the Supreme Court in the case of tula Ram V/s. Kishore Singh, AIR 1977 SC 1410. The matter however, now appears to be settled by the Supreme Court in another decision in the case of h. S. Bains V/s. The State, AIR 1980 SC 1983 . In this case it was held that a reference to Sec.190 (1) (c) of the Code in the case of Abhinandan Jha (supra) is clearly a mistake for reference to Sec.190 (l} (b) of the Code. In view of this authoritative pronouncement by the Supreme Court there can hardly be any duubt or dispute in the matter that even in the case of the submission of the final report by the police if the Magistrate decides to take cognizance of the offence he can only do so under Sec.190 (1) (b) of the code and Sec.190 (. l) (e) of the Code will have no application, 14. l) (e) of the Code will have no application, 14. As stated above in the case of Kuli Singh (supra) the point for consideration before the Special Bench was whether the Magistrate was bound to accept a report submitted by the police under Sec.173 of the Code atter forming a conclusion that no offence has been committed or it does not send any particular accused for trial The petitioners in the said case had convassed before the special Bench thai the Magistrate was bound by the conclusion of the police. The Special Bench, however, negatived to this coutention of the petitioners, as devoid of any substance It will be useful in connection to refer to paragraph 11 of the leading judgment of this case by Udai Sing, J. Sec.173 (2) of the Code provides for submission of the police report It lays down in seven sub-clauses matters, which must be disclosed in the report. If these seven sub-clauses areduly fulfilled in any report, the report must be held to be sufficient to clothe the Magistrate jurisdiction take cognizance and issue process. Magistrate is under no mandatory obligation to look into the case-diary. 15. Sri Sinha, the learned Counsel for the petitioners has, however submitted that the Magistrate is obliged under law to look into the case-diary, before taking cognizance of the offence. His this submission cannot be accepted this, however, should not be confused with the power of the Magistrate to look into the case-diaryin suitable cases In this Special Bench case, the question under consideration was whether the Magistrate could take cognizance of the offence even against those persons and for such. offengd or which the chargesheet was not sumitted. In paragraph 11. Udai Singh J, has proceded to observe that while considering the report of the police, the Magstrate cannot said to bedebarred from applying himself to the records of the investtigation and all materials forwarded to him by the police. If the report in terms of section 173 of the Code is cryptic, a Magistrate could be fully justfied, rather he is expecied to apply himself to the case diary all relevant materials for considering whether any offence appears to have been committed of not. If the report in terms of section 173 of the Code is cryptic, a Magistrate could be fully justfied, rather he is expecied to apply himself to the case diary all relevant materials for considering whether any offence appears to have been committed of not. From these observations it would become clear that the Magistrate taking cognizance of the offence cannot be saids to be debarred from looking into the case diary and in the case of final report, the Magistrate cannot be said to be confined only to the report under Sec.173 (2) of the Code for considering whether any offence has been committed or not. As a matter of faot, if we look to section 172 (2) of the Code, it becomes clear that any Criminal Court may send for the police diaries of a case under inquairy of trial in such court and may use them not as a evidence in the case but to aid it in such inquiry or trial. No doubl at the stage of taking cognizance of the offence no enquiry or trial can be said to have commenced, but the principle of law is very much there. It has further been held in the said case that a Magistrate would bewell within his power in face it is his duty to peruse the case diary and to discern for himself whether there is evidence justifying puting an accused on trial. There is, however a clear line of distinction between the powers of the Magistrate to look into the case diary in suiable cases and the duty cast on the Magistrate to invariably look into the case diary before passing any order taking coguizance of the offence. No dobt, under law, there is nothing to debar the Magistrate from looking into the case diary, and in suitable cases of final reports before he puts an accused on trial it may be his duty to peruse the case diary to find out whether there is material justifying the the same of not. From all these discussions, it becoms clear that the contentions of Sri Sinha, the learned Counsel 16. In the present case it appears from Annexurea 1 and 2 that FIR was lodged against the petitoners and the police after completing investigations had submitted charge-sheet. From all these discussions, it becoms clear that the contentions of Sri Sinha, the learned Counsel 16. In the present case it appears from Annexurea 1 and 2 that FIR was lodged against the petitoners and the police after completing investigations had submitted charge-sheet. The impugned order as contained in Annexure-3 shows that the Magistrate had perused the charge-sheet submitted by the police before he passed the order taking cognizance of the offence against the present petitioners. 17. Before concluding, however, would like to mention that in this application the petitioners have taken some other points also. It has been submitted that from the FIR it would appear that the informant was himself not an eye witness. This can hardly be said to be a ground for quashing ; as even if it be accepted that the informant is not an eye witness, no provision in law warrants that the informant of a case must invariably be an eye witness. It has further been submitted that the allegations with respect to the deadly weapons or the participation of the petitioners in joining the unlawful assembly are vague. It is for the trial court to find out whether or not the allegations made in the FIR with respect to the deadly weapons or the participation of the petitioners in an unlawful assembly are correct or not. This court in exercise of inherent powers is not required to determine whether the allegations made in the FIR are correct or not as they are questions of fact same is the case with the allegation with respect to an offence under Sec.411 of the Indian Penal Code or with respect to the alleged delay of six hours in lodging of the FIR. So far as the disputed land is concerned, it is for the trial court to determine the claim of possession of the parties over it or the allegation that only partisan witnesses have been examined by the police. AH these facts are completely foreign for the determination of the present application under Sec.482 of the Code. These will be the questions of the facts which can be properly decided by the trial court after hearing the parties. 18. Under these circumstances, I do not find any merit in these contentions of the learned Counsel for the petitioner. AH these facts are completely foreign for the determination of the present application under Sec.482 of the Code. These will be the questions of the facts which can be properly decided by the trial court after hearing the parties. 18. Under these circumstances, I do not find any merit in these contentions of the learned Counsel for the petitioner. In this connection a reference may usefully made to the case of R. P. Kapoor V/s. The State of Punjab, AIR 1960 SC 866 , in which it was held that ordinarily criminal proceedings instituted against an accused must be tried under the provisions of the Code the High court would be relactant to interfere with the said proceeding at an introlocuiar stage. Hence, I do not find any force in these contentions of the learned counsel for the petitioners. 19. For the reasons stated above, prima facie there does not appear to be any ground for the admission of this application. It is accordingly, rejected. This will, however, not prejudice the case of the petitioners before the trial court. Application rejected.