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2003 DIGILAW 660 (PAT)

Birendra Yadav v. State of Bihar

2003-07-04

I.P.SINGH

body2003
ORDER This is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Code'). It is directed against the order dated 23.2.2001 passed by the Chief Judicial Magistrate, Gopalganj in G.R. No.1477 of 2000 in (Kuchailote P.S. Case No. 103 of 2000) by which he had refused to take cognizance of the offence against opposite party nos. 2 to 4 inspite of sufficient materials available on the record against them and had accepted the final form submitted by the Police excluding their names. 2. The case was started on the basis of the Fardbeyan of the Chaukidar recorded against unknown alleging therein that while at 8.30 A.M., the Chaukidar heard the sound of a gun fire and an alarm was raised that murder had taken place. The Chaukidar moved towards the place from where the sound was coming. On the way he found a person lying on the road in a pool of blood. He could learn that two persons were coming on a Hero Honda motorcycle from Gopalganj side and three others persons on a Bullet motor cycle were chasing those two. In the process the person sitting on the back seat of the Bullet motor cycle opened fire on the person sitting behind on Hero Honda motorcycle. 3. In course of the investigation the statement of one Saiyed Naushad Azim was recorded by the Police and also by the Magistrate under Section 164 of the Code. In those statements the names of Chotey alias Md. Hussain Pappu alias Parvej and Naushad, son of Manjoor Miya were disclosed. It was further alleged that Pappu alias Parvej opened fire from his country made revolver hitting Shivji Yadav on the right side of the chest. The remaining accused persons also fired 3-4 shots on Shivji Chaudhary. P.W. 4 Shyamdeo Chaudhary in paragraph 51 of the case diary has also supported the case against these three persons. However, the Police after completing the investigation filed charge sheet only against Saiyed Naushad son of Habibul Rahman showing Pappu alias Parvej and Chotey alias Md. Hussain as absconder. The Police, however, did not support the charge sheet against three persons, namely, 1. Naushad 2. Nausher alias Samsher and 3. Samshed. In the supervision note the S.D.P.O. Gopalganj had found the case true against all these persons. Even the Superintendent of Police, Gopalganj had found the case true against them. Hussain as absconder. The Police, however, did not support the charge sheet against three persons, namely, 1. Naushad 2. Nausher alias Samsher and 3. Samshed. In the supervision note the S.D.P.O. Gopalganj had found the case true against all these persons. Even the Superintendent of Police, Gopalganj had found the case true against them. However, no charge sheet was submitted by the Police against them as a result of which the impugned order was passed in which no cognizance was taken against these three persons. 4. It has been contended that it is well settled that according to law the Magistrate has to take cognizance on the basis of the materials available on record but he is not bound in any way by the finding of the Police. The Magistrate has got the ultimate control over the Police investigation. Even if the Police reports that no case is made out against any person, the Magistrate has got full authority under law to proceed against him ignoring the conclusions arrived at by the Police. The decision relied upon in the impugned order, namely, Kishori Singh & Ors.Vs. State of Bihar & another [2001 Cri. L.J. 123(SC): 2000(2) PCCR 440 (SC)] does not apply to the facts of the present case. On the strength of this decision it can not be concluded that in a sessions case the Magistrate has got no authority under law to proceed against those persons against whom no charge sheet has been submitted. The stage of Section 319 of the Code does not come at the cognizance taking stage. On these grounds it has been prayed that the impugned order be quashed and necessary order may be passed which may be deemed to be fit and proper. 5. The parties have been heard in detail over the various submissions made by them on this point. From the impugned order it appears that the learned Magistrate had taken into consideration the statement made by the witnesses before the Police as also the statement recorded under Section 164 of the Code. It further appears that he had also taken into consideration the supervision note submitted by the Police. However, the learned Magistrate could not take cognizance of the offence against the three accused persons named above since no charge sheet was submitted against them and also in view of the decision in the case of Kishori Singh (supra). It further appears that he had also taken into consideration the supervision note submitted by the Police. However, the learned Magistrate could not take cognizance of the offence against the three accused persons named above since no charge sheet was submitted against them and also in view of the decision in the case of Kishori Singh (supra). As against it the learned counsel appearing on behalf of the petitioner has submitted that the above decision can not be applied to the present case inasmuch as the facts in these two cases are entirely different. It has further been submitted that this authority can not be interpreted to mean that even when the Magistrate finds sufficient materials against certain persons who were not charge-sheeted in a case triable by the Court of Sessions, he had no authority under law to take cognizance against them. According to the learned counsel for the petitioner the facts of the case of Kishori Singh (supra) are entirely different and the findings recorded therein will not apply to the present case. This takes us to the consideration and interpretation of the findings recorded by the Hon'ble Supreme Court in the case of Kishori Singh (supra). 6. Before the Hon'ble Supreme Court Kishori Singh and two others had filed an appeal contending therein that though they were named as accused in the F.I.R. they were not charge sheeted. There also the offence in question was one which was triable by a Court of Sessions. The Magistrate before whom the charge sheet was placed, by his order dated 10.6.1997, came to the conclusion that there appeared sufficient grounds to proceed against the accused persons and as such took cognizance of the offences against them under Sections 302/34, 324, 448 of the Indian Penal Code and Section 27 of the Arms Act. Later on, on the prayer of the prosecution the Magistrate by an order dated 22.10.1997 issued non-bailable warrant of arrest against these three appellants even though they were not charge sheeted by the Police while filing the papers under Section 173 of the Code though they were named as accused in the F.I.R. Against this order these appellants moved the learned Sessions Judge in revision who held that the order of the Magistrate was without jurisdiction and set it aside. The matter was taken to the High Court which interfered with the order passed by the learned Sessions Judge. This is how It came to the Hon'ble Supreme Court. 7. The distinguishing feature of this case is that no charge sheet was submitted against these appellants before the learned Magistrate who by his order dated 10.6.1997 took cognizance of the offence only against the persons against whom the charge sheet was submitted. In the order dated 10.6.1997 the learned Magistrate took cognizance only against the accused persons. The expression "accused persons" was interpreted by the Hon'ble Supreme Court in this decision, to mean those accused persons against whom the Police had filed the charge sheet. In other words it was made clear that those persons named as accused in the F.I.R. but not charge sheeted would not come within the meaning of the "accused persons". When on 22.10.1997 the learned Magistrate ordered for the issue of non-bailable warrants of arrest against them (appellants) it was held that this could not have been done inasmuch as these appellants against whom no charge sheet was submitted will not be covered by the expression "accused persons" and, therefore, the Magistrate could not have issued warrants of arrest against them, It was further made clear that it would be only at the stage of recording of evidence that; taking recourse to Section 319 of the Code; the Sessions Judge could have ordered for their trial in the said case. 8. It may be stated here that in the present case the stage of Section 319 of the Code had not come as yet. It was still all the stage of Section 190 of the Code in which by the impugned order the cognizance of the offence was taken against some on the strength of the decision in Kishori Singh (supra) while letting off those who were not charge Sheeted. In the case of Kishori Singh (supra) however, the learned Magistrate had taken cognizance by his order dated 10.6.1997 only against the persons against whom the charge sheet was submitted inasmuch as those persons against whom no charge sheet was submitted would not fall under the expression "accused persons" as held in the case of Kishori Singh (supra). In the present case no such thing has happened. In the present case no such thing has happened. The order by which the learned Magistrate has decided not to proceed against some persons was passed in view of the decision in the case of Kishori Singh (supra) even when he was satisfied that the case against them was clearly made out on the basis of the materials available in the case diary including the statements made under Section 164 of Code. Since this order of the learned Magistrate has been challenged in the present application it can not be treated to be a concluded order. 9. The decision in the case of Kishori Singh (supra) had come up for consideration before this Court. A learned Single Judge (Chandramauli Kr. Prasad, J.) in the case of Horil Sao & ors. Vs. The State of Bihar & Ors. [ 2002 (1) P.L.J.R. 318 : 2002(1) PCCR 171 (PHC)]. After referring to the various decisions of the Hon'ble Supreme Court in the case of Raj Kishore Prasad Vs. State of Bihar & anr. [1996(1) P.L.J.R. (S.C.) 123 : (1996)4 S.C.C. 495 ], Ranjit Singh Vs. State of Punjab (1998)7 S.C.C. 149 ) and M/s. Swil Ltd. Vs. State of Delhi & anr. [2001 (2) PCCR 187 (SC)], in paragraph 17 has observed as follows:- "17. For the reasons stated above I do not have slightest doubt in mind that the learned Magistrate while exercising its power under Section 190 of the Code is not bound by the conclusion arrived at by the Officer-Incharge of the Police Station in a case exclusively triable by Court of Sessions while submitting the report under Section 173 of the Code and in a case in which the materials collected during the course of investigation and forming part of the report under Section 173 Cr.P.C. prima facie suggest complicity of the accused persons in the crime although named in the F.I.R. but not chargesheeted, still the Magistrate can differ with the conclusion and take cognizance of the offence. The Magistrate has such power under Section 190 of the Code. I hasten to add that although the Police is master of investigation but what treatment has to be given to the report is in the domain of the Magistrate." 10. In the case of Kishori Singh (supra) reliance was placed on the case of Ranjit Singh (supra) also. The Magistrate has such power under Section 190 of the Code. I hasten to add that although the Police is master of investigation but what treatment has to be given to the report is in the domain of the Magistrate." 10. In the case of Kishori Singh (supra) reliance was placed on the case of Ranjit Singh (supra) also. This is the three Judge decision of the Hon'ble Supreme Court in an appeal in which the following issue was raised : "Whether the Sessions Court can add a new person to the array of the accused in a case pending before it at a stage prior to collecting any evidence. This question was answered in negative." 11. So far as the case of Ranjit Singh (supra) is concerned it was held that the Committing Magistrate has got no jurisdiction under Section 319 of the Code to summon a person as an accused. It was only on the committal that the Court of Sessions could exercise this jurisdiction under Section 319 of the Code on the basis of the evidence recorded by it. The same proposition of law has been laid down in the case of Ranjit Singh (supra). 12. As stated above the stage of Section 319 of the Code has not come as yet. The case is at the stage of Section 190 of the Code. The parameters of these two sections are entirely different. While acting under Section 190 of the Code there is no fetter on the powers of the Magistrate not only to proceed against a person not charge-sheeted but also to proceed against the accused under a section under which no charge sheet has been submitted. This proposition of law has been properly established by different decision of this Court as also of the Hon'ble Supreme Court. 13. In the case of Emperor Vs. Khwaja Nazir Ahmad (A.I.R. 1945 P.C. 18), it has Clearly been held that the functions of judiciary and the Police are complementary and not overlapping and combination of individual liberty with due observance of law and order is only to be obtained by leaving each to exercise, its own function, always of course subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of Cr.P.C. (old) to give direction in the nature of the habeas corpus. Similarly in the case of Abhinandan Jha & Ors. Vs. Dinesh Mishra (A.I.R. 1968 S.C. 117) the Hon'ble Supreme Court has clearly held that the Magistrate has got no power to call for the chargesheet from the Police but if the Magistrate finds on the basis of the facts stated in the final report that an offence is made out he can take cognizance under Section 190(1) (c) (it was wrongly so held instead of section 190(1) (b) as held in the case of H.S. Bains Vs. The State (A.I.R. 1980 S.C. 1883). This matter appears to have been set at rest in the case of Kuli Singh and others Vs. The State of Bihar & Ors. [A.I.R. 1978 Patna 298 (S.B.)] in which a Special Bench of this Court has held that upon receiving a report under Section 173 a Magistrate has full jurisdiction to differ with the conclusions of the Police and to direct the accused not named in the Police report or not sent up should also be put on trial. This exercise of jurisdiction must be in terms of Section 190(1) (b) which empowers the Magistrate to differ with the Police report, be it a charge-sheet or be it a final report so called. To sum up it was held that in this decision when a final report is submitted by the Police the Magistrate could look into the case diary and other relevant materials. He could also take cognizance and issue process if materials collected during investigation reveal the commission of an offence. Further, it was held that cognizance is taken of the offence and it is entirely immaterial which sections are mentioned while taking the cognizance. 14. Even before this the Hon'ble Supreme Court in the case of Raghubans Dubey Vs. State of Bihar (A.I.R. 1967 S.C. 1167) has observed as follows :- "In our opinion once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders, Once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the Police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence". 15. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence". 15. This decision in the case of Raghubans Dubey (supra) has been approved by the Hon'ble Supreme Court in the case of Swil Ltd Vs. State of Delhi & another [2001 (2) PCCR 187(SC)). Its paragraph no. 7 runs as follows:- "In the present case, there is no question of referring to the provisions of Section 319 Cr.P.C. That provision would come into operation in the course of any enquiry into or trial of an offence. In the present case, neither the Magistrate was holding enquiry as contemplated under Section 2(g) Cr.P.C. nor had the trial started. He was exercising his jurisdiction under Section 190 of taking cognizance of an offence and issuing process. There is no bar under Section 190 Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as an accused in the charge-sheet. 16. The decision in the case of Raghubans Dubey (supra) and Swil Ltd. (supra) has been quoted with approval by the Hon'ble Supreme Court in the case of Rajinder Prasad Vs. Bashir and others [2002 S.C.C. (Crl) 28: 2001(2) PCCR 357 (SC)] In the said case the Magistrate has taken cognizance of an offence under Section 395 of the Indian Penal Code against some persons not included in the charge-sheet submitted by the Police on being prima facie satisfied on the basis of the evidence collected by the Police about the commission of that offence also by some persons other than those arrested by the Police. It was held that it was the duty of the Magistrate to proceed against those persons also. In the said case the charge under Section 395 of the Indian Penal Code was not originally added and the names of four persons were also not mentioned in it. The appellants filed a petition for inclusion of the charge under section 395 of the Indian Penal Code and also the names of four respondents. The Magistrate allowed the application and committed the case to the Court of Sessions where Addl. The appellants filed a petition for inclusion of the charge under section 395 of the Indian Penal Code and also the names of four respondents. The Magistrate allowed the application and committed the case to the Court of Sessions where Addl. Sessions Judge framed charges against all the respondents including these four respondents and added the charge also under Section 395 of the Indian Penal Code. Referring to Section 190 of the Code, the Hon'ble Supreme Court in paragraph 11 of this judgment has observed as follows : "11. Under this section, a Magistrate has jurisdiction to take cognizance of offence against such persons also who have not been arrested by the Police as accused persons, if it appears from the evidence collected by the Police that they were prima facie guilty of the offence alleged to have been committed. Section 209 of the Code prescribes that when in a case instituted on Police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall commit, after compliance with the provisions of Section 207 or Section 209, as the case may be, the case to the Court of Sessions and subject to the provisions of the Code pass appropriate orders. This section refers back to Section 190, as is evident from the words "instituted on a Police report" used in Section 190(1)(b) of the Code. While dealing with the scope of Section 190 this Court in Raghubans Dubey Vs. State of Bihar held that the cognizance taken by the Magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a Magistrate can find out who the real offenders were and if he comes to the conclusion that apart from the persons sent by the Police some other persons were also involved, it is his duty to proceed against those persons as well." 17. On behalf of the petitioner reliance has also been placed on the case of M/s. India Carat Pvt. Ltd. Vs. State of Karnataka and another (A.I.R. 1989 S.C. 885). On behalf of the petitioner reliance has also been placed on the case of M/s. India Carat Pvt. Ltd. Vs. State of Karnataka and another (A.I.R. 1989 S.C. 885). In this decision the Hon'ble Supreme Court has observed as follows : "The position is, therefore, now well settled that upon receipt of a Police report under Section 173 (2) a Magistrate is entitled to take cognizance of an offence under Section 190(1) (b) of the Code even if the Police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the Police during the investigation and take cognizance of the offence complained of.........The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case......who is not bound in such a case." 18. From these authoritative pronouncements the following appears to be the position of law in this regard : (i) The scope of Section 190 and Section 319 of the Code are entirely different. While Section 190 of the Code occurs at the stage of taking cognizance of the offence it is only after adducing of some evidence before the Court of Sessions, that recourse may be taken to Section 314 of the Code. (ii) Under law as noticed above the Magistrate on the receipt of the report by the Police under Section 173(2) of the Code is not bound in any way by its conclusions. The law gives ultimate power to the Magistrate to exercise his discretion in the matter to proceed against a person though not charge-sheeted and also under a section not mentioned in the charge sheet. (iii) The Magistrate exercises this power by virtue of Section 190 of the Code unfettered by any conclusion arrived by the Police in the course of investigation or in the submission of the charge sheet. 19. So far as the present case is concerned the learned Magistrate has noticed sufficient materials on record to summon even those three persons not charge sheeted by the Police. 19. So far as the present case is concerned the learned Magistrate has noticed sufficient materials on record to summon even those three persons not charge sheeted by the Police. However, he has decided not to proceed against them (not charge-sheeted by the Police) on the ground that in a case triable by the Court of Sessions, the Magistrate can not take cognizance of the offence against the person not charge-sheeted by virtue of the decision in the case of Kishori Singh (supra). I have considered the import of the decision in this case as also the different facts and circumstances under which this decision has been passed. Those facts are not present in this case. It is well known that once the Magistrate takes cognizance of the offence only against some persons he can not at a later stage proceed against other persons prior to the stage of Section 319 of the Code, since by his initial order, he has not taken cognizance against them. However, in the present case the stage of Section 319 of the Code has not come. From the impugned order it would appear that the Magistrate had ample materials in the case diary to proceed against three persons, namely, Naushad, Nausher and Shamshad but did not take cognizance against them on account of the fact that as per his interpretation of the decision in the case of Kishori Singh (supra) he could not have done so. As noticed above, the facts of said case were entirely different and they do not apply to the facts of the present case. It. accordingly, appears to me that the learned Magistrate has misapplied the ratio of the decision of the case Kishori Singh (supra) to the facts of the present case and has passed the impugned order. 20. In the result, this application is allowed and the impugned order is quashed. It will be open to the learned Chief Judicial Magistrate to proceed against those three persons named above who were let-off by the Police and against whom no charge sheet was submitted. The learned Chief Judicial Magistrate is directed to pass necessary orders in the light of the observations made above.