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2006 DIGILAW 1137 (PAT)

Ajay Jha v. State Of Bihar

2006-11-28

NAVIN SINHA

body2006
Judgment 1. Heard learned counsel for the petitioners and learned counsel for the opposite party no. 2 2. The petitioners assail the order of cognizance dated 2.11.2002 passed by the Chief Judicial Magistrate, Saharsa under sections 341/380/436 read with 34 of the I.P.C. arising out of a police case. 3. Learned counsel for the petitioners makes a short submission that the order of cognizance is vitiated on the ground that while taking cognizance differing with the police report, the Magistrate has taken into consideration the protest petition of the informant also without holding any enquiry, as required under the Code of Criminal Procedure. 4. Learned counsel for the opposite party no. 2 submits that the Court below has taken cognizance in disagreement with the final report submitted by the police, which was well within jurisdiction. The fact that there is a reference to the protest petition in the opening lines of the order impugned is inconsequential. The informant had a right to be heard after the stage when police submitted the final report. Learned counsel relies upon a judgment of the Supreme Court reported in A.I.R. 1985(SC) 1285 (Bhagwant Singh vs. Commissioner of Police & Anr.) in support of the above proposition. It is thus, submitted that the informant had a right to place his materials before the Court at this stage. This was all that was done. 5. This Court has considered the respective submission of the parties. 6. Under the Code of Criminal Procedure, a prosecution can be instituted by two modes. One is on a police report and the other is on a complaint case. In a police case, after investigation either a charge-sheet is submitted or the police reports that the allegations were not true. The Magistrate has the jurisdiction to differ with the police report that the allegations were not true on basis of the materials during investigation and he can then take cognizance. If the Magistrate decides to accept the final report, he is required to hear the informant. In a complaint case cognizance is taken after enquiry. The accused has no right to be heard at the stage of enquiry. It is, therefore, clear that the procedure under the two are quite different. 7. In the present case the impugned order itself states that the informant had been heard on the protest petition. In a complaint case cognizance is taken after enquiry. The accused has no right to be heard at the stage of enquiry. It is, therefore, clear that the procedure under the two are quite different. 7. In the present case the impugned order itself states that the informant had been heard on the protest petition. To that extent, the impugned order has taken into consideration extraneous materials..The Magistrate was within his jurisdiction to differ with the police report and to take cognizance. He could also have accepted the police report and then proceeded on basis of the protest petition after holding enquiry. 8. This Court finds it difficult to accept the submission on behalf of the opposite party no. 2 that mere reference to the protest petition was inconsequential when the order essentially was one of differing with the police report. 9. Learned counsel for the petitioner rightly relies upon an order of this Court reported in 2004(4) P.L.J.R., 347 to submit that taking of cognizance by taking into consideration the protest petition without an enquiry vitiates the order. 10. This Court finds it difficult to decipher as to what was the effect of the protest petition on the mind of the Magistrate. This Court, obviously, has to go on the tenor of the order. Undoubtedly, the informant had a right to be heard at this stage. But, that was on basis of the materials in the case diary and no more. The moment the protest petitioner is referred to, the matter assumes a different significance. The order of cognizance is not sustainable in its present form. The same is, accordingly, set aside. The matter is remitted to the Court below to pass fresh orders in accordance with law. The application stands allowed.