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2004 DIGILAW 927 (PAT)

Ram Ekbal Rai v. State Of Bihar

2004-09-09

INDU PRABHA SINGH

body2004
Judgment 1. This application has been filed for quashing the order dated 14.3.2002 passed in Raghunathpur RS. Case No. 71 of 1999. by Chief Judicial Magistrate, Siwan by which the learned Magistrate has refused to proceed under section 210 of the Code of Criminal Procedure on a protest petition filed on behalf of the petitioner. 2. It has been submitted on behalf of the petitioner that the learned Magistrate while passing the order did not take into consideration the question of fact and law raised by the counsel for the petitioner and by a cryptic order ignoring the direction made by this Court disposed of the protest petition saying that once cognizance taken, the court had no jurisdiction to further take cognizance against the accused persons. The court should have proceeded under section 210 of the Code of Criminal Procedure (for short the Code). The court should have treated the protest petition as complaint case and should have amalgamated the cases treating as if both the cases were instituted, on the police report. Clause 3 of section 210 further envisages that if the police report does not relate to any accused in the complaint case and if Magistrate does not take cognizance of any offence on the police report, he shall proceed with the enquiry on trial, which rather was stayed by him in compliance with the order of the High Court. It has further been submitted that the learned court below ought to have taken into consideration that the cognizance is taken of the offence and not of the offenders, if the cognizance once was taken of the offence, there was no impediment for the learned Magistrate to summon the other accused persons if the materials against other accused persons were also available in the police report to show their complicity in the offence. 3. 3. Brief fact of the case is that the petitioner lodged First Information Report vide Raghu Nath Pur P.S. Case No. 71/99 on 15.11.1999 under section 302/34 of the Indian Penal Code and also under section 27 of the Arms Act alleging therein that on the date of occurrence i.e. 15.11.99 at 1.00 P.M. while he was at his Darwaja chatting with Janardan Rai, Ram Jee Rai, Jaimangal Rai and Sudama Rai, in the meantime, Sudama Singh, resident of village Nikti and Praduman of village Parsurampur armed with country made gun, Pramod Rai of village Chhotki Nikti armed with country made gun and Munan Rai of village Chhotaki Khurd came there. Praduman Rai asked the informant about the whereabout of Munna Rai. It was further stated that all of a sudden Braj Bhushan Rai alias Munna Rai also, came from his house. Sudama Singh gave order to kill Munna on which accused Praduman Rai fired at him twice with his gun which caused injury to Munna Rai and he fell down there. Blood started oozing out from the injury. On raising alarm by the informant and others accused persons fled away towards east. Later on injured Munna was taken to Raghu Nath Pur Hospital but he succumbed to his injuries in the way. However his dead body was taken to the police station and the police was informed accordingly. On postmortem the doctor also supported the prosecution case and found injuries as narrated. The investigating officer visited the place of occurrence. The police found portion of cartridges as well as blood stained earth. The statement of witnesses was also recorded. As submitted that even there was enough material against the accused but the police in connivance with them did not arrest them and thus they terrorised the witnesses and members of the family of the informant because accused Sudama Rai is active member of Ruling party and close to big wigs. It is also alleged that he is a veteran criminal and accused in numbers of cases. The other accused Parduman Rai is also alleged to be a man of criminal antecedents and is having political links as such with the intervention of political functionaries this case was handed over to the C.I.D. for investigation and thus police has to stop investigation. The other accused Parduman Rai is also alleged to be a man of criminal antecedents and is having political links as such with the intervention of political functionaries this case was handed over to the C.I.D. for investigation and thus police has to stop investigation. It has also been alleged that the Chief Judicial Magistrate did not pass any order for processes of attachment. Even investigating officer or C.I.D. did not take action to apprehend the accused persons and thus they were free to terrorise and threat the petitioners and the witnesses. One Vikram Kuer, the then State Minister also wrote letter to C.I.D. in order to save them intimating therein that Sudama Singh on that day of occurrence was with him and was wrongly implicated in the case. Even inspite of the fact that the crime was committed by the accused persons no charge sheet was submitted and petitioner filed a writ application for quashing the order whereby investigation was handed over to the C.I.D. This court by order dated 16.2.2000 directed the petitioner to file a petition before the D.G.P for directing the investigating officer to arrest the accused persons. Even on that petition of the petitioner on the direction of this Court the accused persons were not arrested and no counter affidavit was filed before this court. Finally this court directed to complete investigation of Raghu Nath Pur P.S. Case No. 71/99 and arrest the accused persons involved in the crime and also submit report under section 173 of the Code within three months. Accordingly final form was submitted on 17.6.2001 but the main accused persons namely Praduman Rai and Sudama Singh were not sent up for trial. Only charge sheet, was submitted against remaining two accused persons Manan Rai and Pramod Rai under section 302/34 of the Indian Penal Code. The aforesaid two persons were left over and were not named in the charge sheet on the plea of ali bi on the strength of a certificate issued by influential person. The Judicial Magistrate also took cognizance only against two persons named in chargesheet. Even though it is alleged that there were sufficient materials in the case diary against others, and petitioner informant had already filed a protest petition in 1999 itself. The Judicial Magistrate also took cognizance only against two persons named in chargesheet. Even though it is alleged that there were sufficient materials in the case diary against others, and petitioner informant had already filed a protest petition in 1999 itself. Petitioner being aggrieved with the order filed a revision petition before this court and this Court vide order dated 15.1.2002 set aside the order of cognizance and remitted the matter to the Chief Judicial Magistrate to pass fresh order in accordance with law, after affording opportunity to the petitioner to be heard on protest petition. The Chief Judicial Magistrate disposed of the matter and refused to take cognizance against the accused persons on the ground that once he has taken cognizance he had no power to take second cognizance again for the same occurrence. 4. As submitted by the learned counsel for the petitioner, the Magistrate should have treated the protest petition filed by the petitioner/informant as complaint petition and should have considered the matter. That apart, the apex court in the case ot Raghubans Dubey V/s. State of Bihar ( AIR 1967 SC 1167 ) has clearly held that cognizance is taken of the offence and not of the offenders. Hence as observed, the court took cognizance on 18.6.2001, was of the offence committed and not of the persons who were involved in it and also did not take cognizance only against opposite parties Manan Rai and Pramod Rai as per the ratio of the apex court in the aforesaid case. It becomes the duty of the Magistrate to find out who were the offenders. It is also well settled that on submission of police report under section 173, Cr. P.C. the Magistrate is not bound to accept the recommendation of the investigating officer (police officer). Rather he is free to proceed against even those persons not sent up for the trial by the police after judicious consideration of materials so available on record. Thus once cognizance is taken it would mean that cognizance is taken against all the offenders including who were not sent up for trial by the police. Thus the impugned order dated 24.3.2002 passed by the Chief Judicial Magistrate wherein it has been observed that cognizance can not be taken for the second time since already he has taken cognizance on 18.6.2001 does not have legal force. Thus the impugned order dated 24.3.2002 passed by the Chief Judicial Magistrate wherein it has been observed that cognizance can not be taken for the second time since already he has taken cognizance on 18.6.2001 does not have legal force. The Magistrate did not realise the fact that once the cognizance dated 18.6.2001 was taken against all the four accused persons involved in the offence and no second cognizance was required to be taken. He had only to issue summons against the two additional co-accused persons. As submitted by the learned counsel for the opposite party that this is not the proper stage to issue summons against the opposite parties since the court had alternative resource to call any accused under section 319 of the Code but the ratio held in Swil Ltd. V/s. State of Delhi and Anr. [ (2001)6 SCC 670 ] is that person not included as accused in charge-sheet, can also be summoned by Magistrate after taking cognizance of offence, if some material is found against him in the FIR, or statement recorded by police or in the documents. As such in this case there is no occasion to take recourse of section 319 of the Code since cognizance is deemed to have already been taken against these petitioners also along with two respondents/co-accused as they were named in the F.I.R. also. The contention of the learned counsel for the petitioner that protest petition was not treated as complaint petition and complainant has not been examined on solemn affirmation and the court did not take recourse of the provision under section 210 of the Code to amalgamate the case is also not applicable in this case. In this case since F.I.R. was lodged against the accused Opposite Party by the petitioner and police though did not send up the accused to face the trial but in the case diary there was material showing involvement of the accused (O.Ps.), as such, the court should have judiciously examined the material available and should have proceeded accordingly. In view of above mentioned decision it is evident thai the order of the learned Magistrate is on cryptic consideration and not sustainable in the eye of law. Accordingly, impugned order is quashed and this application is allowed. However, the court below is directed to proceed against all the four accused persons if their involvement appears from the case diary.