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2005 DIGILAW 792 (PAT)

Dinesh Pandey v. State Of Bihar

2005-09-01

V.N.SINHA

body2005
Judgment V.N.Sinha, J. 1. Heard learned counsel for the petitioners and the State. 2. The three petitioners, along with one Sheo Balak Pandey were named in the First Information Report of Harnaut P.S. Case No. 101 of 2003 dated 30.5.2003 registered for the offences under Secs. 341, 323, 379/34 of the Indian Penal Code in which sec. 302 of the Indian Penal Code was later added and the police after investigation submitted charge-sheet only against the Sheo Balak Pandey, are aggrieved by the order dated 17.1.2004, Annexure-3 to this application, whereunder the Chief Judicial Magistrate, Nalanda has taken cognizance of the aforesaid offences and issued processes not only against the said Sheo Balak Pandey, who was charge-sheeted and sent up for trial, but also against the petitioners, who were not sent up for trial. Petitioners are further aggrieved by the order dated 30.6.2004, Annexure-4 to this application, passed by the 4th Additional Sessions Judge, Nalanda in Cr.. Revision No. 45 of 2004, whereunder the learned Additional Sessions Judge has dismissed the Revision and has thereby upheld the order of the learned Chief Judicial Magistrate, Nalanda issuing processes against the petitioners. 3. Learned counsel for the petitioners appearing in support of this application has contended that in terms of the scheme of the Code of Criminal Procedure (hereinafter referred to as the Code), the petitioners even though named in the First Information Report were not sent up for trial could have been roped in the trial only after commitment of the case by resorting to the provisions contained in sec. 319 of the Code on the basis of the evidence led in the trial showing their complicity. According to the learned counsel for the petitioners, instant case being exclusively triable by the Court of Sessions learned, Chief Judicial Magistrate had only jurisdiction to issue processes against such accused, who have been sent up for trial and he had absolutely no jurisdiction to proceed against the persons named in the First Information Report, but not sent up for trial. 4. In this connection, learned the counsel for the petitioners has relied upon a Division Bench Judgment of the Hon ble Supreme Court rendered in the case of Kishori Singh and Ors. V/s. The State of Bihar and Anr. reported in 2001 Cri LJ 123, paragraphs 9 and 10. 4. In this connection, learned the counsel for the petitioners has relied upon a Division Bench Judgment of the Hon ble Supreme Court rendered in the case of Kishori Singh and Ors. V/s. The State of Bihar and Anr. reported in 2001 Cri LJ 123, paragraphs 9 and 10. For ready reference, paragraph 10 of the said judgment is quoted below : So far as those persons against whom charge-sheet has not been filed, they can be arrayed as "accused persons" in exercise of powers u/s. 319, Cr PC when some evidence or materials are brought on record in course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the material, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge-sheet, as has been explained in the latter three Judge Bench decision. Neither of the contingencies has arisen in the case in hand. 5. On the other hand, learned counsel for the State, with reference to the provisions contained in Secs. 173 and 190(1)(b) of the Code has submitted that the police after investigation of the case submits final report in the form prescribed by the State Government, which contains the names of both the persons who are sent up for trial and those who are not sent up for trial. Report also contains the documents or relevant extracts thereof, including the statements of the witnesses, which the prosecution purposes to rely in support of the case. While perusing the report, learned Magistrate is empowered to look into all the materials, which have been collected during the investigation and thereafter if the learned Magistrate is satisfied about the materials placed before him and proceeds to take cognizance then he takes cognizance of the offences alleged and not of the offenders. Once he takes cognizance, it becomes his duty to find out who are the offenders. While taking cognizance, if the learned Magistrate comes to the conclusion on the basis of the materials collected during investigation that apart from the persons sent up by the police for trial, some other persons are also involved, it is his duty to proceed even against them. While taking cognizance, if the learned Magistrate comes to the conclusion on the basis of the materials collected during investigation that apart from the persons sent up by the police for trial, some other persons are also involved, it is his duty to proceed even against them. According to the learned counsel when a Magistrate takes cognizance under Clause (b) of Sub-sec. (1) of sec. 190 upon a report made by the police officer, he is not restricted to issue processes only to the persons sent up for trial. In this connection, learned counsel for the State has relied on the case of Raghubanash Dubey V/s. State of Bihar reported in -. Perusal of the said judgment indicates that Raghubansh Dubey was named in the First Information Report registered for the offences u/s. 149, 302, 201 of the Indian Penal Code. During investigation he raised the plea of alibi, which was accepted by the police and he was not sent up for trial, but his name was mentioned in Column No. II of the charge-sheet under the heading "Not sent up". While taking cognizance, learned Sub-Divisional Judicial Magistrate observed that accused not sent up for trial is discharged and transferred the case to another Magistrate for enquiry under Chapter XVIII of the old Code. During enquiry proceedings under Chapter XVIII of the old Code two prosecution witnesses (sic) as one who along with others, who were already sent up for trial, had participated in the occurrence. At that stage, counsel for the informant requested the Magistrate to sumon Rabhubansh Dubey as well to face enquiry proceeding which request was allowed and warrant of arrest was issued against him. Order issuing warrant of arrest was challenged before the High Court on the ground that Magistrate had no jurisdiction to summon Raghubansh Dubey, who was never sent up for trial by the police and the Sub-Divisional Magistrate had discharged him while taking cognizance. In this connection, it was submitted that any person, who has not been sent up for trial can be summoned to face trial only after commitment of the case to the Court of Sessions and that too after hearing of the evidence has begun. In this connection, it was submitted that any person, who has not been sent up for trial can be summoned to face trial only after commitment of the case to the Court of Sessions and that too after hearing of the evidence has begun. The contention raised was rejected by the High Court then Raghubansh Dubey moved the Hon ble Supreme Court and again raised the same submissions which was turned down holding 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. 6. Learned counsel for the State further relied on the Full Bench Judgment of this Court in the case of Sk. Lutfur Rahman V/s. State reported in 1985 PLJR 640 as also on a decision of Swil Ltd. V/s. State of Delhi reported in 2001 Supreme Court 2747 to buttress his submission that it is always open for the learned Magistrate to look into the materials collected during investigation and to summon even those persons who have not been sent up for trial. Learned State Counsel further submits that perusal of the judgment of the Hon ble Supreme Court in the case of M/s. Swil Ltd. (supra) indicates that the same has been of Raghubansh Dubey (supra) and it has been categorically held thereunder that at the stage of taking cognizance of the offence, provisions of sec. 190 of the Code are applicable. sec. 190 inter alia provides that the Magistrate may take Cognizance of any offence upon a police report of such facts, which constitute an offence. As per this provision, Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate u/s. 204 of the Code is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. After taking cognizance of the offence, the Magistrate u/s. 204 of the Code is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the First Information Report and the statements recorded by the Police Officer and other documents tendered along with charge-sheet. Further, upon receipt of police report u/s. 173(2) of the Code, the Magistrate is entitled to take cognizance of an offence u/s. 190(1)(b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the Investigating Officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At this stage, there is no question of application of sec. 319 of the Code. That provision would come into operation in the course of any inquiry or trial of an offence. 7. From the First Information Report of Harnaut P.S. Case No. 101 of 2003 dated 30.5.2003; it appears that on 30.5.2003 at about 7.00 a.m. Sheo Balak Pandey obstructed flow of drain water by raising a wall, which was protested by the informant Brahmadeo Pandey. The protest led to altercation between them, whereafter it is alleged that Sheo Balak Pandey called his brother and nephew, including the three petitioners, who along with Sheo Balak Pandey assaulted the informant Brahmdeo Pandey, his wife and daughter-in-law with lathi. It is said that Sheo Balak Pandey assaulted the informant Brahmdeo Pandey with a Bamboo clamp causing bleeding injury. Petitioner No. 1 is alleged to have assaulted the wife of the informant. She also suffered injury on her elbow. The daughter-in-law of the informant was also assaulted and her golden chain was snatched. The situation, however, was not allowed to drift further on account of intervention of the villagers. It further appears from the record that the informant died after eight days of the occurrence during his treatment at PMCH, whereafter under orders of the learned Chief Judicial Magistrate dated 9.6.2003; Sec. 302 of the Indian Penal Code was also incorporated in the First Information Report. It further appears from the record that the informant died after eight days of the occurrence during his treatment at PMCH, whereafter under orders of the learned Chief Judicial Magistrate dated 9.6.2003; Sec. 302 of the Indian Penal Code was also incorporated in the First Information Report. During investigation of the case police examined several witnesses u/s. 161 of the Code and submitted final report on 31.12.2003, which is contained in Annexure-2 to this application and it appears therefrom that thereunder only Sheo Balak Pandey was sent up for trial. The remaining accused, including the petitioners were, however, not sent up for trial, as plea of alibi raised by them was accepted by the, Investigating Agency, The learned Chief Judicial Magistrate, Nalanda considered the police report together with the materials collected during the investigation, including the statement of the witnesses recorded u/s. 161 of the Code and under orders dated 17.1.2004 proceeded to take cognizance of the offence under Sections 302/34, 341, 323, 379 of the Indian Penal Code and transferred the case to the Court of another Judicial Magistrate 1st Class for commitment of the case which order was challenged by the three petitioners, who were not sent up for trial in the police report, by filing Cr. Revision No. 45 of 2004 on the ground that petitioners having not been sent up for trial in the police report, learned Chief Judicial Magistrate ought not to have proceeded against them. The aforesaid Cr. Revision was dismissed by the 4th Additional Sessions Judge, Nalanda under orders dated 30.6.2004, which is contained in Annexure-4 to this application, whereafter the petitioners have filed this Cr. Misc. application under sec. 482 of the Code assailing both the orders dated 17.1.2004 as also 30.6.2004, contained in Annexures-3 and 4 on the ground that petitioners having not been sent up for trial could not have been proceeded against by the learned Magistrate and in support of the said case, reliance has been placed over the judgment of the Hon ble Supreme Court rendered in the case of Kishori Singh (supra), paragraphs 9 and 10. 8. 8. Having perused the judgment of the Hon ble Supreme Court in the case of Kishore Singh (supra), I am of the view that the ratio decidendi of the said case is applicable to the peculiar facts of the said case as in my opinion the observations of the Hon ble Supreme Court made in paragraph 10 of the said judgment runs counter to the observations of the Larger Bench of the Honble Supreme Court rendered in the case of Raghubansh Dubey (supra), which is again quoted below for ready reference : 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. 9. Relying on the aforesaid observations in the case of Raghuhansh Dubey (supra), the Hon ble Supreme Court again reiterated the same position in the case of M/s. Swil Ltd. (supra) and held that the Magistrate while taking cognizance of an offence u/s. 190(1)(b) of the Code on the basis of the police report is empowered to summon even non-charge-sheeted accused persons taking into account the facts collected during the investigation including the statement of the witnesses examined by the police. , 10. In view of the discussions above, reliance placed by the petitioners over the judgment of the Hon ble Supreme Court rendered in the case of Kishori Singh (supra) appears to be wholly misconceived and there does not appear any merit in this application, which is accordingly, dismissed.