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2004 DIGILAW 937 (PAT)

Neel Kamal Singh v. State Of Bihar

2004-09-10

P.K.SINHA

body2004
Judgment 1. This case has been heard alongwith Cr. Misc. No. 33737 of 2001 and this common order will dispose of both the cases. 2. Both the applications have been filed under section 482 of the Code of Criminal Procedure ("the Code" in short), in the instant petition the petitioner Neel Kamal Singh praying to quash the second chargesheet submitted by police (in Bidyapati Nagar P.S. Case No. 58 of 1999) finding out prima facie case against the accused persons under sections 498A, 323 read with section 34 of the Indian Penal Code and under sections 3/4 of the Dowry Prohibition Act. In the other case the same petitioner seeks quashing of order dated 16.8.2001 recorded by the Subdivisional Judicial Magistrate, Dalsingsarai at Samastipur in the same case under which the learned Magistrate had issued processes against the petitioner and others for facing trial. 3. In both the cases the learned counsel for both the sides and learned Additional Public Prosecutor have been heard. 4. Uncontroverted facts of the case are as follows: One Anita Devi, wife of the petitioner had filed the aforesaid case at the police station making various allegations. The police after investigation filed final report (No. 94 of 1999) holding the allegations to be false but thereafter on the direction issued by the Deputy Inspector General of Police, Darbhanga Range, the then Superintendent of Police, Samastipur found the case true and directed for arrest of the accused and for further investigation, whereafter the Investigating Officer obtained permission from the Court of Subdivisional Judicial Magistrate, Dalsingsarai for further investigation which was granted by order dated 20.8.2000/21.8.2000 against which the petitioner moved this Court in Cr. Misc. No. 26429 of 2000 which was disposed of by order dated 17.8.2001. In that case it was admitted on behalf of the petitioner that an order for reinvestigation or further investigation could be granted under the provision of section 173(8) of the Code but the argument was that an order in that regard could be passed if some new material had come to fore necessitating further investigation, and it was claimed that no new material was there on the record. This Court held that when a high police official had ordered for further investigation, it must have been done after getting some material which could not be questioned at that stage. The petition was dismissed. 5. This Court held that when a high police official had ordered for further investigation, it must have been done after getting some material which could not be questioned at that stage. The petition was dismissed. 5. It is also undisputed that all through the learned Magistrate had kept order upon the final report filed earlier, pending. 6. This Court will now consider as to whether on the materials aforesaid and in view of the arguments placed, filing of the charge-sheet, or the order of the Magistrate issuing processes against the accused after cognizance of the offence, could be quashed. 7. The learned counsel for the petitioner in both the cases mainly submitted that there was no new material before the police, or the Court, for ordering further enquiry and in that regard the learned counsel relied upon a Division Bench decision of this Court in the case of Phulena Rai V/s. The State of Bihar; 1979 B.B.C.J. 219. It was held by their lordships that police had statutory right to investigate a cognizable case and could reopen the investigation but in exceptional circumstances, and not in a routine manner and on such fresh material, which could not be obtained earlier. 8. However, the facts as obtaining in that case are a bit different. In that case charge-sheet was first submitted and cognizance of offence was taken but thereafter the Public Prosecutor concerned obtained permission of the Court to withdraw that case on 25.11.1975. Thereafter there was a change in the Government, the accused belonging to a political party, and a revision petition was filed by the State before the Sessions Judge on 1.12.1977 for setting aside the order of the Magistrate allowing withdrawal of case, which gave rise to a Criminal revision, which, however, was withdrawn by the State on 15.2.1978. Thereafter, the Dy. Superintendent of Police, C.I.D., Bihar made a requisition for issuance of non-bailable warrant of arrest as well processes against the accused and others and the investigation was reopened under the orders of a still superior Officer. 9. However, I am afraid that this Court at this stage cannot reopen the question of the Police embarking upon further investigation after obtaining order of the Subdivisional Judicial Magistrate, Dalsingsarai at Samastipur which, however, was not necessary as the Investigating Officer on his own could reopen the investigation which also includes upon the orders of the superior officer. 9. However, I am afraid that this Court at this stage cannot reopen the question of the Police embarking upon further investigation after obtaining order of the Subdivisional Judicial Magistrate, Dalsingsarai at Samastipur which, however, was not necessary as the Investigating Officer on his own could reopen the investigation which also includes upon the orders of the superior officer. That question already having been challenged in Cr. Misc. No. 26429 of 2000, considered and the prayer already rejected by this Court, reopening the same question would amount to a review of the previous order which cannot be done. 10. The learned counsel for the petitioner also submitted that the learned Magistrate had assigned no reason in the impugned order for taking cognizance. 11. From a perusal of the impugned order dated 16.8.2001 it will appear that the learned Magistrate had recorded the order after perusal of the charge-sheet and the case diary. On perusal the learned Magistrate found that sufficient evidence was available for proceeding against the accused persons for the offences as already stated, hence took cognizance of offence. It is now well settled that in an order of taking cognizance it is not necessary for the Magistrate to give in detail the reasons for taking cognizance. If the Magistrate is satisfied on perusal of the charge-sheet or the final report, as the case may be, along with other materials available on the case diary, that prima facie evidence was on the record to show complicity of the accused persons, he could take cognizance expressing his satisfaction that such materials were so available. 12. It may be recalled here that when the police first had filed final report in favour of the accused persons, the learned lower Court had not applied mind to that final report, consequently did not go through the case diary at that time to find out as to whether or not the final report could be accepted. Obviously, the learned Magistrate went through the entire materials on record which included the final form submitted twice, and the materials available on the case diary before passing the impugned order. Obviously, the learned Magistrate went through the entire materials on record which included the final form submitted twice, and the materials available on the case diary before passing the impugned order. It is also well settled that a Court will not interfere with the investigation of the police while it is going on, but once the final form was filed, whether final report or a charge-sheet, the Magistrate was free to take a decision as to whether or not to accept the recommendation of the police in the final form and if so satisfied, could pass an order contrary to the recommendation of the Police. 13. Learned Additional Public Prosecutor, Shri Prabhat Ranjan, in reply took the Court to the materials available in the case diary of the investigation and of the further investigation pointing out that materials a vailable in the case diary made out a prima facie case against the accused persons including the petitioner. 14. This Court need not go in detail about the materials available on the case diary but suffice it to say that when the Magistrate took cognizance of offence upon the materials available on the case diaries, he could have been faulted on this account. 15. In the result, l dont find that filing of the charge-sheet which came after further investigation after also obtaining an order for grant of further investigation which order not having been quashed by this Court in a previous proceeding, nor the impugned other of the learned Subdivisional Judicial Magistrate, Dalsingsarai at Samastipur, need any interference in view of what has been discussed above. 16. Both the petitions stand dismissed.