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2006 DIGILAW 1131 (PAT)

Kumar Nandan @ Bittu Kumar v. State Of Bihar

2006-11-28

ABHIJIT SINHA

body2006
Judgment 1. The instant application at the instance of Kumar Nandan @ Bittu Kumar, one of the persons impleaded as accused in Hajipur (Town) P.S. Case No. 489/98 (G.R. 3084/98, Tr. No. 965/05) is directed against the order dated 21.7.2006 passed in Cr. Rev. No. 203/2005 by Sri Prabhat Kumar Jha, the learned Sessions Judge, Vaishali at Hajipur, whereby and whereunder he has dismissed the revision application of the petitioner herein challenging the legality of the order dated 21.4.2005 passed in the aforesaid G.R. Case No. 3084/98 by Sri Sunil Kumar Singh, Judicial Magistrate, First Class, Hajipur, by which the learned Magistrate dismissed the petition of the petitioner herein for his discharge u/s 239 Cr.P.C. A prayer has also been made for quashing of the entire criminal proceeding pending against him including the order taking cognizance. 2. The grievance of the petitioner herein is three fold: (i) the learned Chief Judicial Magistrate had erred in allowing the petition of the informant for recording the statement of the witnesses u/s 164 Gr.P.C; (ii) the learned Chief Judicial Magistrate without treating the protest petition filed by the informant as a complaint case and without examining the witnesses on solemn affirmation took cognizance of the offence under Sections 144, 447, 379 I.P.C. only by relying on the available statements under Sec.164 Cr.P.C.; and.(iii) that no offence under Sec.144 I.PC. can be said to have been made out as charge- sheet had been submitted against three persons only. 3. So far as the first contention is concerned, it has been submitted that although the supervising authority had recommended for submitting charge-sheet only against Abhay Sahni and Chandeshwar Prasad Singh, the Investigating Officer in his wisdom had submitted a charge-sheet against all the three F.I.R. named accused under Sections 144, 427, 447 I.P.C. only as he found the case of theft to be false. However, the learned Chief Judicial Magistrate ignoring the well established principle of law allowed the petition filed by the informant for recording the statement of the witnesses under Sec.164 Cr.P.C. and in accordance therewith the statement of the witnesses under Sec.164 Cr.P.C. was recorded by a Judicial Magistrate, 2nd Class, Hajipur. In this connection it was submitted that Sec.164 Cr.P.C. does not empower the Magistrate to record statement of witnesses unless a requisition is made by the Investigating Agency. In this connection it was submitted that Sec.164 Cr.P.C. does not empower the Magistrate to record statement of witnesses unless a requisition is made by the Investigating Agency. Reliance in support of the submission was placed on the case of Jogendra Nahak vs. State of Orissa ( AIR 1999 S.C. 2565 ). 4. SO far as the second contention is concerned, it was submitted that the informant on being aggrieved by the charge-sheet filed a protest petition before the learned Chief Judicial Magistrate and the court without treating the protest petition as complaint case and without examining the witnesses on solemn affirmation took cognizance of the Offence under Sections 144, 447, 427, 379 I.P.C. solely on the basis of the statement of the witnesses recorded under Sec.164 Cr.P.C. According to the learned counsel for the petitioner herein the procedure adopted by the learned C.J.M. was against the well established principles of law and the reliance on the statement of the witnesses recorded under Sec.164 Cr.P.C. in respect of the offence of theft had no legal sanctity. 5. So far as the third contention is concerned, it was submitted that no overt act had been attributed to the petitioner herein and he was referred to as a member of the mob only. It was further submitted that no offence under Sec.144 I.P.C. can be said to have been made out as the basic ingredients thereof had not been fulfilled inasmuch as to constitute an unlawful assembly there was a requirement of five or more persons and charge-sheet had been submitted only against three persons. 6. I will first take up the third contention of the learned counsel for the petitioner herein. Even if the statement of the witnesses recorded u/s 164 Cr.P.C. is not taken into account, it is apparent from the order of the revisional court that the informant and his son in paragraph 24 of the case diary had categorically stated that the petitioners herein had participated in the occurrence. The petitioner had therefore formed an unlawful assembly alongwith 30-35 other persons which had resorted to the act of demolishing the wall of the informants house. The petitioner herein is therefore liable to be charge u/s 144 IPC as he happened to be a part of the unlawful assembly. The petitioner had therefore formed an unlawful assembly alongwith 30-35 other persons which had resorted to the act of demolishing the wall of the informants house. The petitioner herein is therefore liable to be charge u/s 144 IPC as he happened to be a part of the unlawful assembly. It is another matter that charge-sheet has been submitted only against two persons and the unknown others could not be traced. Accordingly, I do not find any merit in the third contention of the learned counsel for the petitioner herein and negative his contentions. 7. So far as the other two issues are concerned, they are taken up together for discussion. There is no dispute that Sec.164 Cr.P.C. does not empower a Magistrate to record the statement of a person unsponsored by the investigating agency. Therefore, the statement of the witnesses recorded under Sec.164 Cr.P.C. at the instance of the informant cannot be looked into as they are not sustainable in law. However, if the situation so demands, these witnesses may be examined in court during trial. 8. It is the case of the petitioner that cognizance under Sec.379 I.P.C. was taken primarily on the basis of the statement of the witnesses recorded under Sec.164 Cr.P.C. This does not appear to be the correct situation. It is apparent from the impugned order of the Magistrate that the informant, Shailendra Kumar Pandey in his written petition named the petitioner and two others, namely, Abhay Sahni and Chandeshwar Prasad Singh and in course of investigation the son of the informant in paragraph 24 of the case diary also disclosed the name of the petitioner and stated that three accused persons alongwith other unknown persons variously armed with weapons came to the place of occurrence, abused the inmates of the house, demolished the boundary wall and gate and took away a cow. The informant has also alleged about the accused persons taking away the cow. Therefore, even if the statement of the witnesses recorded under Sec.164 Cr.P.C. is not taken into account, from the written petition of the informant and the deposition of his son in paragraph 24 of the case diary a clear case of theft is made out. In that view of the matter, I do not find any merit in the submissions of the learned counsel for the petitioner regarding taking of cognizance under Sec.379 of the I.P.C. 9. In that view of the matter, I do not find any merit in the submissions of the learned counsel for the petitioner regarding taking of cognizance under Sec.379 of the I.P.C. 9. Due regard being had to the facts and the circumstances of the case and in view of the categorical decision of the Hon ble Court in Jogendra Nahak case {supra) recording the statement of witnesses under Sec.164 Cr.P.C. at the instance of the informant is set aside. However, I do not find any merit in respect of the Other two submissions which stand negated. 10. Accordingly, the application is allowed to the extent indicated in the foregoing paragraphs. However, prosecution shall be at liberty to examine those witnesses examined under Sec.164 Cr.P.C. at the instance of the informant if it so desires during the trial.