Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 814 (PAT)

Tarkeshwar Singh v. State Of Bihar

2003-08-05

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. Aggrieved by the order dated 7.4.2001 passed by the 6th Additional Sessions Judge, Chapra in sessions Trial no. 59 of 1999 petitioner has preferred this revision application. By the said order, warrant of arrest has been issued to the petitioner to face the trial, in exercise of power under section 319 of the Code of Criminal Procedure. 2. On the basis of a report given by one Shashi Kant Singh, Mashrak RS. Case No. 38 of 1998 under section 302/34 of the Indian Penal Code was registered. Petitioner has been named as one of the accused. Police, after investigation, submitted charge sheet against one Chandra Shekhar Singh showing other accused as absconders. So far as this petitioner is concerned, the investigation has been entrusted to the Criminal Investigation Department and the same is still at the stage of investigation. Charge under section 302 of the Indian Penal Code and 27 of the Arms Act have been framed against the charge sheeted accused Chandra Shekhar Singh and another accused. In the trial, witnesses were examined and when the matter was taken up on 7.4.2001, the learned Judge passed the following order. "It appears from the evidence of the prosecution witnesses Tarkeshwar Singh, Manoj Singh and Ragho Singh have committed the offence of murder of Shva Kant Singh. These persons are not facing trial in this case together with the accused. These persons can be tried together with the accused. Issue warrant of arrest against the aforesaid persons." 3. Against the aforesaid order, petitioner preferred the present revision application. During the pendency of this revision application, the learned Judge concluded the trial of other accused persons and by judgment dated 16th of July, 2001, convicted them for offence under section 302 of the Indian Penal Code and 27 of the Arms Act. When the matter was taken up by this court on 24.7.2001, it was pointed out that on account of conclusion of the trial, order passed under section 319 of the Code of Criminal Procedure is rendered illegal. This court accepted the contention of the petitioner in the following words. "In that way definitely section 319 Cr.P.C. could not be applicable which was applicable only in the pending cases where the other accused persons were facing trial. In that way also the impugned order is bad. This court accepted the contention of the petitioner in the following words. "In that way definitely section 319 Cr.P.C. could not be applicable which was applicable only in the pending cases where the other accused persons were facing trial. In that way also the impugned order is bad. Hence the order is without jurisdiction and the same is quashed. This order has been passed without giving notice to the opposite party no. 2 but after hearing the learned counsel for the State of Bihar as the order is without jurisdiction based on third point raised." 4. Aggrieved by the aforesaid order, the informant Shashi Kant Singh preferred Cr. Appeal No. 547 of 2002 and the Supreme Court by its judgment dated 24th of April [Shashikant Singh V/s. State of Bihar & Others (2002) 5 SCC 736] set aside the order of the High Court and remitted the matter back for fresh consideration. While doing so, it observed as follows ; "On facts, the court could not have intended while concluding the trial against Chandra Shekhar Singh, to nullify its earlier order directing issue of warrants against Respondent 1. The construction to be placed on a provision like this has to commend to justice and reason. The words "could be tried together with the accused" in section 319 (1) cannot be said to be capable of only one construction. If it was so, approach to be adopted would be different since the intention of Parliament is to be respected despite the consequences of interpretation. There is, however, a scope for two possible constructions. That being the position, a reasonable and common sense approach deserves to be adopted and preferred rather than a construction that would lead to absurd results of Respondent 1 escaping the trial despite passing of an order against him on the courts satisfaction under Section 319(1) and despite the fact that the proceedings against him have to commence afresh. In this view, the fact that trial against Chandra Shekhar Singh has already concluded is of consequence insofar as Respondent 1 is concerned." In view of the aforesaid legal position, the High Court was clearly in error in coming to the conclusion that the order dated 7.4.2001 had become without jurisdiction as a result of the conclusion of trial against Chandra Shekhar Singh. The impugned order of the High Court is, therefore, set aside. The impugned order of the High Court is, therefore, set aside. The High Court did not go into the other contentions as urged on behalf of Respondent 1 and decided Criminal Revision No. 269 of 2001 only on the point aforenoted. In this view, we would remand Criminal Revision No. 269 of 2001 to the High Court for fresh decision to consider the other contentions urged by Respondent 1." 5. This is how the matter has come up before me for reconsideration. Mr. Ajay Kumar Thakur appearing on behalf of the petitioner submits that in view of the plain language of section 319 of the Code of Criminal Procedure, hereinafter referred to as the Code, which contemplates power to proceed against the persons appearing to be guilty of offence in the course of any inquiry or trial power under this provision was not available and hence the order impugned is fit to be set aside on this ground alone. 6. Mr. Rana Pratap Singh, Senior Advocate appearing on behalf of opposite party no. 2, however, submits that the aforesaid submission of the petitioner having been negatived by the Supreme Court, it is not open to the petitioner to urge this point once again. In fairness to Mr. Thakur, he concedes that the judgment of the Supreme Court in the case of Shashi Kant Singh (supra), had squarely negatived his contention but according to him the said judgment has been rendered without considering the relevant provisions of the Code as also other binding authorities and as such, the judgment rendered is a judgment in per incuriam and hence not binding on this court. I had the occasion to consider this question in the case of Jagdish Lal V/s. Bihar State Electricity Board and others 2003 (3) P.L.J.R. 86 and on review of the texts and authorities I observed as follows : "27. On principle also if one tends to ignore the judgment of the Surpeme Court levelling the same to be judgment rendered in per incuriam, the same shall be fraught with danger. This will result into post-mortem of the judgment of the Supreme Court and the binding effect of the judgment, which the Constitution makers clearly have in their mind while enacting Art. 141 of the Constitution, shall be rendered meaningless. This will result into post-mortem of the judgment of the Supreme Court and the binding effect of the judgment, which the Constitution makers clearly have in their mind while enacting Art. 141 of the Constitution, shall be rendered meaningless. Art. 141 of the Constitution has been incorporated to avoid conflicts of authority and to secure certainty and uniformity in the administration of justice. If principle of per incuriam is permissible to be invoked by the High Court, in relation to the judgment of the Supreme Court, in face of Art. 141 of the Constitution of India, for the parity of reasons the same shall apply to the Courts exercising inferior jurisdiction than that of the High Court. In such a situation, even though the law is declared by the Supreme Court, its status shall be in fluid state, and it shall be difficult for anybody to speak about the status of law on a particular subject. Thus the submission advanced, if accepted will tend to cause irreparable damage and make the position of law uncertain. I am of the considered opinion that it is not permissible for any Court, which obviously includes the High Court but not the Supreme Court, to depart from the law laid down by the Supreme Court by calling its decision as per incuriam. Decision rendered by the Supreme Court is binding on Subordinate Courts, however erroneous the construction may be. In fact, a Court exercising inferior jurisdiction cannot call a judgment of the Supreme Court to be erroneous. To many, it may sound frustrating to say but I say so emphatically that if inferior court is allowed to disobey judgment of the Superior Court, the entire legal system shall collapse. Judicial system can work and can work alone if someone is allowed to have the last word and if that last word once spoken is loyally accepted. Judges are under an oath to uphold the Constitution and the law, hence it is my duty in face of Art. 141 of the Constitution to do or die and accept the judgment loyally." 7. Mr. Thakur then submits that power under section 319 of the Code can be exercised only in the course of inquiry or trial but cannot be exercised during the course of investigation. He points out that the investigation of the case has been entrusted to the Criminal Investigation Department, which is still pending. Mr. Thakur then submits that power under section 319 of the Code can be exercised only in the course of inquiry or trial but cannot be exercised during the course of investigation. He points out that the investigation of the case has been entrusted to the Criminal Investigation Department, which is still pending. The fact that the investigation is pending with the Criminal Investigation Department has not been disputed by Shri Singh but he submits that mere pendency of investigation does not restrict the power of the trial court to summon a person to face the trial. Shri Singh highlights that the Magistrate can take cognizance of the offence under section 190 of the Code even in relation to a case in which investigation is going on and on parity of reasoning nothing prevents the trial court during the trial to summon an accused in a case in which investigation is still going on. Reliance has been placed on a decision of the Supreme Court in the case of State of Maharashtra V/s. Sharad Chandra Vinayak Dongre and Ors. reported in AIR 1995 SC 231 . My attention has been drawn to the following passage from para-7 of the judgment which reads as follows : "XXX After applying his mind to the police report and the material submitted therewith, if the Magistrate is satisfied that cognizance of the offence is required to be taken, he shall proceed further in accordance with the provisions of the Code of Criminal Procedure. Section 190(1)(b), Cr.P.C. provides that a Magistrate has the power to take cognizance upon a police report of such facts as are provided therein on being satisfied that the case is a fit one for taking cognizance of the offence. Therefore, if the police report and the material filed therewith is sufficient to satisfy the Magistrate that he should take cognizance, his power is not fettered by the label which the investigating agency chooses to give to the report submitted by it under Section 173{2), Cr.P.C. Merely, because the prosecution had filed an application, after submission of the charge-sheet, seeking permission to file "supplementary charge-sheet", it could not affect the jurisdiction of the Magistrate to take cognizance, if he has otherwise satisfied from the material placed before him along with the charge-sheet that cognizance of the offence was required to be taken. It is the jurisdiction of the Magistrate and Magistrate alone to decide whether the material placed by the prosecution with the report (charge- sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and the evidence before the Magistrate." 8. At the first blush, the submission of Mr. Thakur seems attractive but on deeper scrutiny, I find the same to be devoid of any substance. I am entirely in agreement with Mr. Thakur that power under section 190 of the Code to take cognizance of the offence is more wider than the power to proceed against a person not an accused in the case during the course of inquiry or trial of other accused and both operate in different field. Section 319 of the Code is in relation to the power of the Court to proceed against such person who from the evidence in course of inquiry or trial, appears to have committed any offence whereas section 190 of the Code talks of power of the Magistrate to take cognizance of the offence even upon his own knowledge. It does not need much argument to say that there is distinction between investigation, inquiry or trial in view of their definition under sections 2(h) and 2(g) of the Code as also the power under section 319 of the Code can only be exercised in the course of any inquiry or trial of an offence but this in no way advances the case of the petitioner. The whole foundation on which this argument has been built, in my opinion, is without any foundation. Here, power under section 319 of the Code has been exercised during the trial of other accused persons and not under investigation. This power has been exercised while the trial of an accused was going on and on the basis of evidence in that trial, it appeared to the learned Judge that the petitioner has committed the offence. In view of this conclusion the authorities relied on by Shri Singh has no bearing with the issue is hand. 9. Mr. Thakur then points that even if the impugned order is held to be legal, the trial of the petitioner has to be stayed. In view of this conclusion the authorities relied on by Shri Singh has no bearing with the issue is hand. 9. Mr. Thakur then points that even if the impugned order is held to be legal, the trial of the petitioner has to be stayed. In this connection, he has referred to section 210 of the Code which reads as follows : "210. Procedure to be followed when there is a complaint case and police investigation in respect of the same: (1) When in a case instituted otherwise than on a police, report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation." 10. From a plain reading of this section, it is evident that trial or inquiry has to be stayed in a case when during the course of inquiry or trial of a complaint case, it appears to the Magistrate that investigation by the police is in progress in relation to the offence for which the trial or inquiry is going on. In the present case, trial is going on the basis of police report and not in a case instituted otherwise than on a police report and hence, section 210 of the Code is not remotely attracted in the present case. Hence, I reject this submission of Mr. Thakur. 11. I hasten to add that the entire legal gymnastic had occasioned on account of failure on the part of the investigating agency to submit the report within the reasonable time. The occurrence had taken place on 22.2.1998 and for that, Masrak RS. Case No. 38 of 1998 was registered on 22.2.1996 (sic) itself under section 302/34 of the Indian Penal Code and 27 of the Arms Act. The occurrence had taken place on 22.2.1998 and for that, Masrak RS. Case No. 38 of 1998 was registered on 22.2.1996 (sic) itself under section 302/34 of the Indian Penal Code and 27 of the Arms Act. The report under section 173 of the Code was submitted in respect of some of the accused which led to trial and even conviction but investigation in respect of the petitioner has been handed over to Criminal Investigation Department and it is keeping the investigation pending for reasons best known to it, certainly not the complicity of the crime. It is high-time that the people to whom the governance is entrusted by the people under the Constitution, must give serious thought about it. 12. Mr. Thakur lastly submits that there is no evidence at ail from which it would appear that the petitioner has committed any offence and on this ground alone, the order impugned is fit to be set aside. In any view of the matter, Mr. Thakur highlights that the order has been passed in mechanical manner without application of mind and from the reading of the order, it is difficult to ascertain the evidence which weighed with the learned judge while passing the impugned order. Mr. Singh, however, tempts me to go through the evidence and come to the conclusion that same does show that the petitioner has committed the offence. 13. The impugned order issuing warrant of arrest against the petitioner has been quoted in the preceding paragraph of this judgment. At the first instance, I was tempted to go through the evidence and see to myself as to whether any evidence exists showing petitioners complicity in the offence but having pondered over the matter, I am of the opinion that it shall be unwise on my part to go through the evidence and express any opinion in regard thereto, as any finding recorded by me shall have bearing on the trial which may prejudice either party. Hence, I refrain from appraising the evidence on this question. 14. However, I find substance in the submission of Mr. Thakur that the order impugned does not show any application of mind. Hence, I refrain from appraising the evidence on this question. 14. However, I find substance in the submission of Mr. Thakur that the order impugned does not show any application of mind. It is well settled that power under section 319 of the Code has to be sparingly used and before the court uses the same, the order must indicate the nature of evidence and the name of the evidence on whose evidence, it appeared to the court that the person not an accused, appears to have committed the offence. Nothing has been stated by the learned Judge while passing the impugned order. In my opinion, assigning reason, even briefly, is the soul of any judicial order. At least, the court is to disclose its mind as to what weighed with it while passing the order. It may not pass a detailed order but the order on the face of it, must show that it has applied its mind.. This guarantees consideration and minimises arbitrariness and gives satisfaction to the party against whom the order is made. The order impugned suffers from serious error of non-application of mind. 15. In order to put the record straight I may state that Mr. Singh had submitted that power under section 319 of the Code is available to the court to summon any other person to face the trial and for that, referred to a large number of authorities. But in view of the fact that the order impugned has been found to be illegal on the ground that the same does not disclose application of mind, I deem it inexpedient to refer to those submission and the authorities. In the result, this application is allowed. The impugned order dated 7.4.2001 is set aside and the matter is remitted back to the trial court to pass fresh order in accordance with law bearing in mind the observation made above within two months from the date of communication of this order.