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2006 DIGILAW 1189 (PAT)

Hiralal Gupta v. State Of Bihar

2006-12-05

GHANSHYAM PRASAD

body2006
Judgment 1. Heard. 2. This application under Sec. 482 Cr.P.C. has been filed to quash the order dated 27.7.2006 passed by A.C.J.M, Sheikhpura in Barbigha RS. Case No. 176 of 2002 thereby and thereunder the Court below has taken cognizance against the petitioner under Sections 409, 467, 468, 471 and 477A/35 of the Indian Penal Code. 3. The matter relates to misappropriation of Government money to the tune of Rs. 13,206.00 only. Certain amount was advanced under scheme no. 23/99 of 2000 for construction of two rooms of a school. This petitioner is said to be Junior Engineer of the Area who was entrusted with the work of supervision. However, the work was to be executed by agent Suresh Pandey, V.L.W. The Addl. Collector and Executive Engineer on 16th June, 2002 inspected the work site and found some irregularities in construction of the rooms. It was further found that about Rs. 13,206.00 was misappropriated by the agent, this petitioner and other engineers of the Building Construction Department. 4. Accordingly, fardbeyan was lodged by the local B.D.O., Sheikhpura on 3.7.2002. The Police instituted a case against this petitioner and others under various sections of the I.PC. Senior Police Officials including D.I.G., Munger Range supervised the investigation and found the allegation as not true. Accordingly, final form was submitted by the police. However, the court below did not accept the final form and took cognizance against this petitioner through impugned order. 5. Power of Court to differ from the opinion formed by the investigating agency is well recognized. The final report submitted by the police is not binding on the Magistrate and the Magistrate may take cognizance in spite of it. But question is whether the report of the police containing opinion formed on the basis of investigation is a mere waste having no value in the eye of law. Whether it is completely on the mercy of the Magistrate who may accept it or throw it even if there is no protest from the side of the informant. Whether the entire exercise undertaken by the investigating agency under Chapter XII of the Code of Criminal Procedure is a mere wasteful. Then what for investigation? 6. Whether it is completely on the mercy of the Magistrate who may accept it or throw it even if there is no protest from the side of the informant. Whether the entire exercise undertaken by the investigating agency under Chapter XII of the Code of Criminal Procedure is a mere wasteful. Then what for investigation? 6. Investigation chapter is an important chapter in Cr.P.C. The word investigation has been defined under Sec.2(h) of the Cr.P.C. which is as follows: "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf." 7. The investigation as provided under Chapter XII of the Cr.P.C. has definite purpose and role in criminal justice. It consists of following steps (see 1955 S.C. 196 H.N.Rishbud vs. State of Delhi):- "(1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consists of the (a) examination of various person (including the accused and the reduction of their statement into writing, if the officer thinks fit, (5) The search of place for seizure of things considered necessary for the investigation and to be produced at the trial and (6) Formation of the opinion as to whether material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of the charge-sheet under Sec.173 of Cr.P.C." 8. There is also presumption of the correctness under Sec.14(e) of the Evidence Act of the steps taken under Chapter XII of the Cr.P.C. 9. From above discussions of law, it is quite clear that the opinion formed by the investigating agency has got sanction of law. It is not mere wasteful exercise. It is formed after collecting material from the spot and examination of all concerned persons including prosecution and the accused. 10. Now in the aforesaid background, one has to examine as to whether Magistrate has absolute and arbitrary power to reject the opinion of the investigating agency. One must bear in mind that putting a person in criminal trial is a very serious matter. 10. Now in the aforesaid background, one has to examine as to whether Magistrate has absolute and arbitrary power to reject the opinion of the investigating agency. One must bear in mind that putting a person in criminal trial is a very serious matter. Therefore, Magistrate should not reject the opinion the I.O. in a mechanical manner and take cognizance in disregard of the opinion formed after lawful exercise undertaken under Chapter XII of the Cr.P.C. There must be some strong and sufficient grounds for the Magistrate to differ from the opinion formed by the Investigating agency. 11. The purpose of this decision is not to limit the power of Magistrate or to enlarge the power of the police but only to remind the Magistrate of its duty cast under the law. 12. Taking into consideration of the above, it appears that in the present case the Magistrate has taken cognizance without properly considering the opinion formed by the different officials of the police including the D.I.G., Munger Range. It further appears that there was no protest petition in the case against the investigation. The amount involved is also a meagre amount and this petitioner was not directly responsible either for the payment or executing the work in question. In spite of that, the court below has taken cognizance against the petitioner. Apparently, taking cognizance under the above circumstances and facts is misuse of process of the court. 13. Accordingly, the application is allowed and the impugned order of cognizance dated 27.7.2006 in respect of this petitioner stands quashed.