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2006 DIGILAW 1142 (PAT)

Uma Shankar Singh v. State Of Bihar

2006-11-29

MRIDULA MISHRA

body2006
Judgment 1. Heard the counsel for the petitioners and the counsel appearing for the State. 2. This application has been filed for quashing the first information report of Dhaka P.S. Case No. 21 of 2006 which has been instituted by one Badri Nath Sharma, Assistant Sub Inspector of Police, Pachpakri Out Post, alleging commission of offence under Sec. 196 of the Indian Penal Code and Sections 25 (1-B)A and 26 of the Arms Act. Petitioners are named in the first information report as accused. The facts behind institution of this case as stated in this application is that earlier Uma Shankar Singh (petitioner no. 1) had instituted Dhaka P.S. Case No. 138 of 2005 on 27.10.2005 alleging commission of offence under Sections 448, 341, 323, 307, 504 and 120B of the Indian Penal Code and 25(1-B)A and 26 of the Arms Act naming Ram Singh, Raju Singh and Jai Shree Singh as accused. This case was investigated by Badri Nath Sharma, Assistant Sub Inspector of Police, Pachpakri Out Post. During investigation, when the petitioner (informant of Dhaka P.S. Case No. 138 of 2005) found that the Investigating officer has gone in connivance with the accused persons. He filed a protest petition before the Magistrate. In the protest petition allegations were made against the investigating officer regarding demand of some money. On completion of the investigating, final report no. 28 of 2006, dated 21.02.2006, was prepared. Before its submission in the Court on 21.02.2006 itself Badri Nath Sharma instituted Dhaka P.S. Case No. 21 of 2006 naming petitioners as accused for commission of offence under Sections 196 of the Indian Penal Code and 25 (1-B)A and 26 of the Arms Act. So far the final report in Dhaka P.S. Case No. 138 of 2005 is concerned, it was submitted in the Court after institution of the first information report of Dhaka P.S. Case No. 21 of 2006. The Magistrate did not accept final form and took cognizance against the accused persons named in the first information report deferring with the final form. On the other hand, in an anticipation of acceptance of final form, present case, Dhaka P.S. Case No. 21 of 2006, has been instituted. 3. Petitioners have challenged the very institution of the first information report on the grounds that it is malicious, vexatious and totally against the provisions under the Criminal Procedure Code. On the other hand, in an anticipation of acceptance of final form, present case, Dhaka P.S. Case No. 21 of 2006, has been instituted. 3. Petitioners have challenged the very institution of the first information report on the grounds that it is malicious, vexatious and totally against the provisions under the Criminal Procedure Code. The first ground which has been taken by the petitioners is that in case the investigating officer found that first information report which was instituted by the petitioners was false, he should have submitted the prosecution report before the Magistrate making a requisition for initiation of a case against the informant and witnesses for commission of offence under Sections 182 and 211 of the Indian Penal Code. The Investigating Officer under the Criminal Procedure Code has got no jurisdiction to institute separate first information report alleging commission of offence under Sec. 196 of the Indian Penal Code which relates to using evidence known to be false. The institution of the first information was malicious considering the fact that in the protest petition the informant (petitioner no. 1) had made allegation against the investigating officer. The investigating officer was bent upon to give protection to the accused persons. Further it has been submitted that the first information report has been instituted for such allegations which is non-existent considering the fact that in Dhaka P.S. Case No. 138 of 2005 the Magistrate has taken cognizance deferring with the final form. Since the final form was not accepted there was no reason for institution of the first information report for commission of offence under Sec. 196 of the Indian Penal Code, on this count the first information report is fit to be quashed. 4. Secondly, it has been submitted that the institution of the first information report of Dhaka P.S. Case No. 21 of 2006, by Badri Nath Sharma for commission of offence under Sec. 196 of the Indian Penal Code is completely without jurisdicttion as provided under Section 195(1)(b) of the Criminal Procedure Code. Such first information report should be quashed at its very inception for the reason that no Court shall take cognizance of offence under Sec. 196 of the Indian Penal Code unless the prosecution has been initiated by such Magistrate in relation to a proceeding before whom such offence has been committed. Such first information report should be quashed at its very inception for the reason that no Court shall take cognizance of offence under Sec. 196 of the Indian Penal Code unless the prosecution has been initiated by such Magistrate in relation to a proceeding before whom such offence has been committed. In the present case, only the Magistrate before whom the final form was submitted was competent to initiate a proceeding against the petitioners. Since no such proceeding has been initiated by the Magistrate, the investigating officer was not competent to institute the first information report and for this reason also the first information report is fit to be quashed. 5. Considering the legal provisions no other submissions could be made by the counsel for the State in this case except that the institution of the first information report is barred under Sec. 195 of the Criminal Procedure Code and continuation of such proceeding will be an abuse of process of Court. 6. considering the submissions made by the parties and the legal provisions. I find that there is much force in the submission made by the counsel for the petitioners. The institution of the first information report is in violation of the provisions under Sec. 195 of the Criminal Procedure Code. It is malicious in view of the fact that the final form submitted by the investigating officer was not accepted by the Court and feferring with the final form, cognizance as been taken in the earlier Dhaka P.S. Case No. 138 of 2005. The first information report was instituted ignoring this fact. 7. Accordingly, the first information port of Dhaka P.S. Case No. 21 of 2006 is quashed. 8. This application is allowed.