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2003 DIGILAW 431 (JHR)

Gopal Prasad @ Gopal Lal v. State of Jharkhand

2003-04-03

D.N.PRASAD

body2003
Order This application has been filed under Section 482 of the Code of Criminal Procedure against the order dated 3.8.2002, whereby and whereunder the learned court below took cognizance of the offences under Section 302/34/120B of the Indian Penal Code in connection with Koderma PS Case NO.64 of 2002 corresponding to G.R. Case No. 112 of 2002. 2. The prosecution case as alleged that one Manoj Yadav registered a case alleging therein that he was a cousin of the deceased Brahamdeo Yadav, who was the friend of one Delip Lal of the same village and Dilip Lal is issueless and therefore the petitioner Gopal Lal had an intention to grab the properties of Dilip Lal and that was being opposed by the deceased Brahamdeo Yadav who was also the Bodyguard of Delip Lal. It is further alleged that on 16.2.2002 the cousin brother of the Informant Brahamdeo Yadav alongwith his firend Dilip Lal and one daughter of Sarhoo of Delip Lal, namely, Neha Kumari, were coming on a Hero Honda Motorcycle from Bishnugarh. As soon as the motor cycle reached near Bagitanr at NH-31 (patna Ranchi Road) at about 7 p.m., they were accosted by Gopal Lal and his son Santosh Lal alongwith other miscreants. It is further alleged that Brahamdeo Yadav was shot by fire arm injury and thereafter they fell down from the motorcycle and the second shot was also fired from close range, resulting the death of Brahamdeo Yadav whereas Dilip Lal and Neha Kumari sustained serious injuries. Accordingly, F.I.R. was lodged under Section 302/34/120B of the Indian Penal Code. Police investigated into the case and after investigation submitted Final Report finding no clue in the matter. 3. The learned counsel appearing on behalf of the petitioner submitted that the court below committed error in taking cognizance without appreciating the evidence on record as none of the witnesses supported the prosecution case in any manner whereas the witnesses examined before the Investigating Officer as well as before the Supervising authority consistently deposed that the petitioner and his son/accused persons had stayed at Bishnugarh in the same night and they were not present at the place of occurrence as well as the Supervising Authority, Dy. Supdt. Supdt. of Police and Superintendent of Police also opined in their supervision that the case is false as against the petitioner and accordingly Final Report was submitted but instead of accepting the Final Report the court below took cognizance, which is illegal. 4. On the other hand, the learned counsel appearing on behalf of the opposite party nO.2 contended before me that there is no illegality in the order impugned as the court below is empowered to take cognizance even after perusing the evidence collected during investigation under Section 161 Cr.P.C. and he has rightly took cognizance on the statement of Dilip Lal and Neha Kumari, who are said to be the eye witness as regards to the occurrence. 5. Section 190(1) of the Code of Criminal Procedure deals with about taking of the cognizance of offences by Magistrate, which reads as under: "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". 6. It is true that FIR was not lodged on the basis of statement of Dilip Lal because of the fact that he has also sustained bullet injury and he has to rush to the Sub-divisional Hospital, Koderma and thereafter to Appollo Hospital, Ranchi which also finds mentioned in the diary itself. Both Dilip Lal and Neha Kumari also sustained injuries at the relevant time and they were taken to the Hospital for treatment. It is but natural that the life saving was more important than going to the Police station. Both Dilip Lal and Neha Kumari were treated at Appollo Hospital, Ranchi also for the injury caused by gunshot. . 7. From perusal of the order impugned, it appears that the court below after perusing the evidence collected during investigation came to the conclusion that the petitioner is also involved in the said crime as the eye witness, Dilip Lal and Neha Kumar, are consistent on this point. . 7. From perusal of the order impugned, it appears that the court below after perusing the evidence collected during investigation came to the conclusion that the petitioner is also involved in the said crime as the eye witness, Dilip Lal and Neha Kumar, are consistent on this point. In the light of direct evidence of eye witness, the opinion of the Supervising authority cannot be accepted and taken into account and the court below is competent enough in rejecting the said opinion. It is the Magistrate, who is to be satisfied from the evidences collected during investigation for reaching to the logical conclusion and if the Magistrate is satisfied in reaching to the correct conclusion on the basis of the evidence collected during investigation, he can straightaway take cognizance of the offences refusing to accept the Final Report by disagreeing with the said opinion. At the time of cognizance, the defence at all available to the accused is not to be considered and decided. Further, cognizance is always taken of the offence and not of the offender. The plea of alibi as taken by the petitioner is the subject matter for consideration during trial and not at this stage. 8. In a police case, as soon as Final Report is submitted under Section 173(2) of the Code of Criminal Procedure after completing investigation, two courses are available to the Magistrate either he will accept the Final Report or he will take cognizance on the materials available during the investigation in the case diary. However, a Protest petition may also be filed which shall be treated as a complaint and shall be dealt with under Section 202 Cr.P.C. At the time of taking cognizance, the Magistrate is required to go through the entire diary, F.I.R. and other materials available on the record meticulously and then to apply his judicial mind to the materials on the record and pass an order taking or not taking the cognizance. But the Magistrate is fully empowered to take cognizance on the materials collected during investigation even if the Final Report showing no clue is submitted by the Investigating Officer. 7. There appears, the court below passed the order considering the entire evidence on diary in detail and finding prima facie case, he took cognizance of the offences. Thus, there appears no illegality in order to be interfered with, at this stage. 7. There appears, the court below passed the order considering the entire evidence on diary in detail and finding prima facie case, he took cognizance of the offences. Thus, there appears no illegality in order to be interfered with, at this stage. In the result, the application being devoid of merit is dismissed.