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1993 DIGILAW 371 (PAT)

Prema Singh v. State Of Bihar

1993-08-27

NARAYAN ROY

body1993
Judgment NARAYAN ROY, J. 1. Heard learned Counsel for the petitioner. 2. In this case the prayer of the petitioner is for a direction to the learned Chief Judicial Magistrate, Ranchi for taking cognizance of the offences which have been disclosed in the complaint petition. 3. By the impugned order, dated 2-8-1993 the learned Chief Judicial Magistrate, Ranchi has taken cognizance of the offences only under Sections 500 and 504 of the Indian Penal Code. It is stated that there are sufficient facts constituting offences punishable under different sections of the Indian Penal Code besides the offences for which cognizance has been taken. 4. I propose to dispose of the application at this stage itself without issuing notices to the opposite parties as till date processes have not been issued to them. This fact has been stated in paragraph 4 of the supplementary affidavit. Since processes have not been issued to them, they do not have locus standi to oppose this application. In this connection reference can be had to the case of Chandra Deo v. Prokash Chandra, AIR 1963 SC 1430 . 5. From a bare perusal of the complaint petition it appears that the complainant has disclosed several facts constituting offences under various sections of the Indian Penal Code apart from the offences under Sections 500 and 504 of the Penal Code. It appears that the learned Chief Judicial Magistrate has held an inquiry under Section 202 of the Code of Criminal Procedure and in course of inquiry he has also examined some of the witnesses from whose depositions it apperas that they have also supported the case of the complainant in toto and the facte disclosed therein. 6. From the order impugned itself it is apparent that the learned Chief Judicial Magistrate has taken into consideration all aspects of the matter but in a slip-short manner has taken cognizance of the offences only under Sections 500 and 504 of the Indian Penal Code. It appears that a specific fact was also disposed in the complaint petition that a notice of the Court which was issued in the form of summons, was forged by the accused persons and that was used an non-bailable warrant of arrest and this fact has ben supported by the complainant in the complaint petition. It appears that a specific fact was also disposed in the complaint petition that a notice of the Court which was issued in the form of summons, was forged by the accused persons and that was used an non-bailable warrant of arrest and this fact has ben supported by the complainant in the complaint petition. The learned Chief Judicial Magistrate has also seen the records of the Court below from where he has found that, in fact, it was a summon and not non-bailable warrant of arrest. 7. The learned Chief Judicial Magistrate was not sitting in a trial and he was to take cognizance of the offences which were alleged in the complaint petition. He is to see whether the facts constituting offences are there and whether he is prima facie satisfied for those offences. Issuances of processes against accused persons is a judicial determination and the learned Magistrate is empowered to do so on the basis of the facts constituting offences and just to ascertain truth or falsehood, an enquiry is held under Section 202 of the Code, but the Magistrate making an enquiry has to do this only with reference to the intrinsia quality of the statements made before him at the enquiry. 8. From the order impugned I find that the learned Magistrate was satisfied with the offences and he had found a prima facie case for issuing processes against the accused persons. From the complaint petition as well as the statements made by the witnesses I find that a specific case of forging the Courts document has been found and prima facie, it appears to me that it is a case for taking cognizance for such offence punishable under Section 466 of the Indian Penal Code also apart from the other offences. 9. The learned Magistrate was, thus, bound to take cognizance for the offences disclosed in the complaint petition. It appears that he has acted in ignorance of the settled principles of law as well as the procedures laid down in the Code of Criminal Procedure. 10. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interest of an absent accused person but also with a view to bring to book a person or persons against whom grave allegations are made. 10. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interest of an absent accused person but also with a view to bring to book a person or persons against whom grave allegations are made. On the facts disclosed in the complaint petition constituting offences, the learned Magistrate was duty bound to take cognizance of those offences as he was prima facie satisfied on the basis of the inquiry held by him that a case for issuance of processes against the accused persons is made out. 11. Under these circumstances, I find that a prima facie case is made out against the accused persons for committing offences punishable under Sections 448, 452, 323, 342, 354, 355, 365 and 466 of the Indian Penal Code and since the learned Chief Judicial Magistrate has taken cognizance only for some of the offences, I modify the order impugned and direct the learned Chief Judicial Magistrate, Ranchi to take cognizance of the offences as indicated above in addition to the offences for which cognizance has- already been taken and then to proceed in the matter in accordance with law. The learned Court below is also directed to issue processes against the accused persons. In case of non-appearance of the accused persons, in the peculiar facts and circumstances of this case where a lady has been victimised, the Court below is directed to issue non-bailable warrant of arrest against them for their commission of non-bailable offences. 12. Before parting with this order I want to sound a note of caution. The learned Chief Judicial Magistrate should be cautious in future in passing such type of orders. He must deal with the matters according to law keeping in view the minimum judicial norm and constraints. 13. With this observation/direction this application is disposed of. Petition allowed.