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2002 DIGILAW 400 (PAT)

Biseshwar Das v. State Of Bihar

2002-03-22

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. This application has been filed for quashing the order dated 5.8.2000 passed by Chief Judicial Magistrate, Begusarai in Balia P.S. Case no. 71/2000 (G.R. Case no. 959/2000) whereby it had taken cognizance of the offence under sections 420, 406, 409, 465, 468, 469, 471, 472, 474, 477A, 414 and 120B of the Indian Penal Code. 2. Shorn of unnecessary detail facts giving rise to the present application are that on the basis of a report given to the police, Balia P.S. Case no. 71/2000 was registered under the aforesaid sections of the Indian Penal Code. Police, after investigation, submitted chargesheet against the petitioner. Chargesheet, so submitted, was placed for consideration before the learned Magistrate, who by the impugned order took cognizance of the offence. While doing so he has observed as follows : "C.S. for the offence punishable u/ss 420, 406, 409, 465, 467, 468, 469, 471, 472, 474, 477A, 414 and 120B of IPC has been submitted against the accused noted in col. 11 of C.S, in separate-sheets. Perused C.S. alongwith case diary. 1 find sufficient materials to proceed with the case further. Accordingly, Cognizance is taken under the aforesaid offence against the accused noted in Col no. 11 of C.S. Let the case be transferred to the court of S.D.J.M., for favour of disposal. Put up on 10.8.2000, O/C to open a separate file along with F.I.R. of C.S." 3. Petitioner, who has been chargesheeted in the case and against whom cognizance has been taken has preferred this application. 4. Mr. Shivnandan Ray, Senior Advocate appearing on behalf of the petitioner submits that the Magistrate while taking cognizance is required to apply his mind and in his submission, in the present case the learned Magistrate had taken cognizance without application of mind. He points out that application of mind should reflect in the order. According to his submission order taking cognizance, which has been quoted above clearly shows non application of mind. He points out that application of mind should reflect in the order. According to his submission order taking cognizance, which has been quoted above clearly shows non application of mind. He submits that mere perusal of chargesheet along with case diary by the learned Magistrate while passing the impugned order does not indicate that he has applied his mind in support of the submission, learned counsel has placed reliance on a judgment of learned Single Judge of this Court in the case of Paras Nath Singh V/s. State of Bihar, 1998 (3) PLJR 334 and my attention has been drawn to para 6 of the said judgment, which reads as follows : "From perusal of the impugned order it appears to me that the learned Chief Judicial Magistrate in fact, has passed a very mechanical order and it is a case of non-application of mind. The order of the Chief Judicial Magistrate simply says that the record of the case along with case diary has been produced. On perusal of the case diary a case under Section 406/34 of the Indian Penal Code is made out against the petitioner. Accordingly, cognizance is taken. In fact, a routine type order has been passed by the Chief Judicial Magistrate which is not the spirit of the provision contained in the Code. The impugned order, therefore, cannot be sustained in law on this ground alone which requires reconsideration by the Chief Judicial Magistrate." 5. Mr. Damodar Prasad Tiwary, however, appearing on behalf of the State submits that the impugned order passed by the learned Magistrate clearly indicates application of judicial mind and the complaint made by the petitioner that cognizance has been taken without application of mind is unfounded. In support of his submission learned counsel has placed reliance on a judgment of a learned Single Judge of this Court in the case of G.C. Bahuguna V/s. State of Bihar, 2000 (1) PLJR 625 , which reads as follows : "I have no hesitation in rejecting the contention of the petitioners on this score. The impugned order does not disclose non application of mind in passing the impugned order. The learned Magistrate taking cognizance is not required to record a detailed reasoned order. The impugned order does not disclose non application of mind in passing the impugned order. The learned Magistrate taking cognizance is not required to record a detailed reasoned order. The impugned order should on the face of it disclose perusal of all the papers before him, i.e. taking into account all the relevant materials on record and exclusion of all the irrelevant materials. In such circumstances, the contention of the petitioners is rejected." 6. Having appreciated the rival submissions, neither on principle nor precedent I am inclined to accept the submission of Mr. Ray. Section 204 (1) of the Code of Criminal Procedure (hereinafter referred to as the Code.) confers power on the Magistrate for taking cognizance and issuance of process, same reads as follows : "204. Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he. thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction." 7. Aforesaid section uses the expression "in the opinion of a Magistrate" which is with reference to existence of sufficient ground for proceeding in the case. The words in the opinion of Magistrate points the necessity of application of judicial mind to the materials on record and rules out the possibility of either acting mechanically or abitrarily. Taking of cognizance and issuance of process under section 204 of the Code is a matter of judicial determination and It must be preceded by application of judicial mind to the material before the Court to determine if the grounds for proceeding against the accused exist. 8. The order impugned in the present case has been quoted and from its plain reading it is evident that the learned Magistrate had taken into note the fact that the chargesheet in the case has been filed constituting offence punishable under various sections as indicated in the order. The said order also indicates that he has perused the chargesheet along with the case diary and thereafter formed opinion regarding sufficiency of materials for proceeding in the case. The said order also indicates that he has perused the chargesheet along with the case diary and thereafter formed opinion regarding sufficiency of materials for proceeding in the case. The word perused according to Chambers English Dictionary means to examine in detail or an act of perusing means careful examination, scrutiny of the material. 9. Here in the present case, as stated earlier, the learned Magistrate has clearly stated that he has perused the chargesheet as also the case diary and this clearly shows application of mind. 10. In the case of Paras Nath Singh (supra) this court observed while taking cognizance the learned Magistrate had simply noted the fact that the record of the case along with case diary has been produced and on perusal of the case diary a case under section 406/34 of the Indian Penal Code has been made out against the petitioner. 11. However, in the present case, the learned Magistrate had taken note of the fact that chargesheet has been submitted constituting offence under various sections of Indian Penal Code and not only this he has perused the chargesheet as also the case diary. This clearly shows that while taking cognizance and Issuing process the learned Magistrate had applied his judicial mind and his order cannot be said to be mechanical. 12. In that view of the matter, the authority relied on by Mr. Ray does not in any way supports his submission. It is well settled that while taking cognizance and directing for issuance of process under section 204 of the Code of Criminal Procedure, the Magistrate is required to form opinion as regard to the sufficiency of ground and recording of reasons is not necessary. In somewhat similar circumstance a division bench of this Court in the case of Sumer Paneri & Anr. V/s. State of Bihar ILR (1977) 56 Patna 438 held the order to be legal. In the said case it was observed as follows : "In my opinion, therefore, it is not necessary for the Magistrate to state the reasons on which his opinion regarding the existence of sufficiency of the ground for proceeding in the matter is based. The intention of the framers of the law also, to my mind, does not appears to be so. The intention of the framers of the law also, to my mind, does not appears to be so. Under section 203 of the Code, it has been specifically provided that if as a "result of his inquiry or investigation (if any) under section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing". The expression "the Magistrate is of opinion" or "in the opinion of a Magistrate" occurs in both the sections, namely, sections 203 and 204 of the Code, when the Parliament intended that the Magistrate should "briefly record his reasons" it specifically provided in this regard in section 203 where a complaint has to be dismissed. No such mandate has been provided in section 204. I would, therefore, hold that while issuing process under section 204 of the Code, a Magistrate is not required to record his reasons for doing so and the existence of the sufficiency of the grounds for proceeding in the matter is left to the subjective satisfaction of the Magistrate taking cognizance, who has to form his own independent and judicial opinion on the materials on record, and the analogy of administrative or quasi-judicial orders cannot be applied" 13. For the reasons stated above I do not find any merit in this application and it is dismissed accordingly. 14. However, it is made clear that the observation made in this order is for disposal of this application and shall not prejudice either party at later stage of trial.