Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 870 (PAT)

Abul Kaish v. State Of Bihar

2006-09-20

MIHIR KUMAR JHA

body2006
Judgment 1. Heard counsel for the parties. 2. The two petitioners, namely, Abul Kaish and Md. Zafir, are aggrieved by an order, dated 18.9.2006 passed by the learned Sessions Judge, Supaul in Criminal Revision No. 86 of 2005 affirming the order taking cognizance, dated 17.3.2005 passed by the Chief Judicial Magistrate, Supaul. 3. The facts which would be necessary to be noticed is that the First Information Report, dated 3.6.1998 being Kishanpur PS Case No. 62 of 1998 was instituted on the fardbeyan of one Amrica Devi wherein she had named seven persons including these two petitioners as accused alleging offences under Sections 147, 341, 323 and 354 of the Indian Penal Code and 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The police after investigation had submitted charge-sheet against five other accused persons but not against these two petitioners on 31.1.1999 and thereafter it appears that the Chief Judicial Magistrate, Supaul had also taken cognizance against five accused persons (hot petitioners). Subsequently, it appears that in view of the provision made in Section 7 of the Sche- duled Castes and Scheduled Tribea (Pre- vention of Atrocities) Act, the Chief Judicial Magistrate had recalled his order taking cognizance and had directed for further investigation by the competent officer not below the rank of Deputy Superintendent of police. The Deputy Superintendent of Police had thereafter re-investigated the whole case and had submitted charge-sheet on 6.2.2002 and again not against these two petitioners and, therefore, they were not sent up for trial in view of a final form submitted against them by the Police. The Chief Judicial Magistrate, however, by his order dated 17.3.2005 had taken cognizance for offences under Sections 147, 323, 341 and 354 of the Penal Code and 3(i)(x) of the Scheduled Castes and Sche- duled Tribes (Prevention of Atrocities) Act and issued process not only against the persons against whom charge-sheet was submitted on 31.1.1999 but also against these two petitioners by holding that on perusal of the case diary, he had found that there were materials to show the complicity of these two petitioners. The Chief Judicial Magistrate for arriving at his findings in his order, dated 17.3.2005 has specifically referred to paragraphs 2, 3, 4, 5, 7, 22, 31 and 42 of the main case diary and paragraphs 5, 6, 7 and 10 of the supplementary case diary (the note of investigation by the DSP). Thereafter, the petitioners along with two other accused persons had assailed the aforementioned order taking cognizance, dated 17.3.2005 in Criminal Revision No. 86 of 2005 which came to be dismissed by an order, dated 18.9.2006. The Additional Sessions Judge in the revisional order had only gone to hold that there was no infirmity in the procedure merely because the case was re-investigated by the police pursuant to a direction of the Chief Judicial Magistrate in view of Section 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 4. Mr. Farooque Ahmad Khan, Senior Counsel appearing on behalf of the petitioners has submitted that there was no illegality in the re-investigation of the case as the same could definitely be supported under the provisions of Section 173(8) of the Cr PC and equally there was no infirmity in holding of the further investigation or that the order taking cognizance on the basis of the same. Mr. Khan infact submitted that he would confine his submissions only in relation to these two petitioners and in this context, he has invited my attention to the statements made by the persons who were examined by the police in various paragraphs of the case diary which went to show that the name of the petitioners were not even remotely referred to in connection with any part of the occurrence. According to him, the only an omnibus and vague allegation against the petitioners could be traced out from the contents of the First Information Report which were also not at all corroborated in course of investigation by the police and as such the impugned order taking cognizance against the two petitioners was devoid of any substance. In this connection, he had emphatically submitted that it was due to lack of any material against the petitioners that the police after conducting investigation and further investigation had submitted final form on both the occasions by not sending either of them to face trial whereas the police had submitted charge-sheet against the remaining five accused persons against whom it had found sufficient materials. It was thus contended that the Court below had committed material irregularity in summoning the two petitioners of this case to face trial while taking cognizance while differing with the police report i.e. final form submitted against the two petitioners. 5. Counsel for the Opposite-Party No. 2, on the other hand had tried to defend the impugned orders but he was not able to place any material from the entire main case diary or from the supplementary case diary which could even remotely connect the two petitioners in any manner in the alleged occurrence and/or offence. He had also conceded that the various paragraphs of the main and the supplementary case diary referred to and relied by the Court below in the impugned order for taking cognizance against the two petitioners did not contain their name, much less any specific allegations against them and as such he was not in a position to support the findings of the Chief Judicial Magistrate that there were materials against these two petitioners for taking cognizance. He, however, has raised an objection to the very maintainability of this quashing application on the ground that only in the garb of this application under Section 482 of the Code of Criminal Procedure, the petitioners had actually filed a second revision application which is clearly barred under Section 397 (3) of the Code of Criminal Procedure. He, in this context, has also relied on a decision of the Apex Court in the case of Rajan Kumar Machananda v. State of Karnataka, reported in 1990 (Supp) SCC 132. 6. Mr. He, in this context, has also relied on a decision of the Apex Court in the case of Rajan Kumar Machananda v. State of Karnataka, reported in 1990 (Supp) SCC 132. 6. Mr. Farooque Ahmad Khan, senior counsel in reply has submitted that once the counsel for the Opposite-Party No. 2 had failed to point out any material from the case diary showing direct or even indirect involvement of the two petitioners it had to be inferred that the impugned order passed by the Chief Judicial Magistrate taking cognizance against the petitioners was wholly unjustified and, therefore, in the ends of justice, this Court could definitely exercise its powers under Section 482 of the Code of Criminal Procedure for the simple reason that when these very issues were raised before the revisional Court, they were not even answered much less adjudicated in the impugned revisional order and the same was disposed of by merely holding that the revision application is not sustainable as there was no flaw in the order of the learned Magistrate. 7. On the basis of the aforementioned rival contention, the first question, therefore, to be decided is whether this application is maintainable? 8. Section 482 of the Code of Criminal Procedure reads as follows : "482. Saving of inherent power of High Court.Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 9. The scope of Section 482 of the Code has been time and again examined even in relation to Section 397(3) of the Code both by the Apex Court and by this Court and it has been held that there is no bar in exercise of powers under Section 482 of the Code merely because a person has earlier availed the remedy under revisional jurisdiction. The whole concept under Section 482 of the Code of Criminal Procedure hinges around the principles of securing the ends of justice. The whole concept under Section 482 of the Code of Criminal Procedure hinges around the principles of securing the ends of justice. It is true that the power under Section 482 of the Code of Criminal Procedure has to be exercised by the High Court in exceptional circumstances and in rare of rarest cases but that would not mean that even if there is no material to connect a person, an order taking cognizance passed against him will not be interfered with by the High Court only because the earlier revision application filed by him was dismissed by the Sessions Court in a perfunctory manner without application of a judicial mind. It is well settled by now that an order of Magistrate issuing process against the accused persons can be quashed or set aside by the High Court in exercise of its power under Section 482 of the Code of Criminal Procedure only when allegations set out in the complaint/First Information Report is not at all substantiated in course of enquiry under Section 202 of the Code of Criminal Procedure or investigation by the police, can it be said that when a Magistrate departs from the aforementioned well settled principle in course of issuing process against an accused person in a case where the police had not filed a charge-sheet and there is no material in the case diary to substantiate committing of an offence by such accused persons, this Court would be precluded from exercising its power under Section 482 of the Code of Criminal Procedure merely because a revision application against the aforementioned order of the Magistrate issuing process against the accused persons named in the First Information Report came to be dismissed in purported exercise of power under Section 397 of the Code of Criminal Procedure withou application of mind by the Revisional Court? In my considered opinion, the bar which has been statutorily prescribed under Section 397 (3) of the Code of Criminal Procedure is not in any way referable to circumscribing or restricting the power of the High Court under Section 482 of the Code of Criminal Procedure. In my considered opinion, the bar which has been statutorily prescribed under Section 397 (3) of the Code of Criminal Procedure is not in any way referable to circumscribing or restricting the power of the High Court under Section 482 of the Code of Criminal Procedure. Infact, what is sought to be secured by way of avoidance of multiplicity of litigation under the revisional power is once a person moves Sessions Judge in revisional jurisdiction under Section 397(1) of the Code of Criminal Procedure, the same person cannot again move the High Court by filing a second revision application against the same order in view of the bar imposed under Section 397 (3) of the Code of Criminal Procedure. There is a valid and justifiable reason for the same inasmuch as the Legislature while vesting power of revision under Section 397 of the Code of Criminal Procedure has empowered concurrently both the High Court or in the Sessions Court and, therefore, the power under Section 397(3) of the Code of Criminal Procedure has to be strictly construed as an off-shoot of restriction under the revisional power alone. The view that I have taken is yet supported by a judgment of the Apex Court in the Case of Municipal Corporation of Delhi v. Ram Kishan Rohatagi and others, reported in AIR 1983 SC 67 wherein the Apex Court after considering the comparative scope of Section 397 viz-a-viz Section 482 of the Code of Criminal Procedure had held as follows : ".......... It may be noticed that Section 482 of the present Code is the ad verbatim copy of Section 561-A of the old Code. This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the Court has been done or where the process of the Court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate Courts, it was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate Courts. It is not merely a revisional power meant to be exercised against the orders passed by subordinate Courts, it was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate Courts. Thus, the scope, ambit and range of Section 561-A (which is now Section 482) is quite different from the powers conferred by the present Code under the provisions of Section 397. It may be that in some cases there may be overlapping but such cases would be few and far between. It is well settled that the Inherent powers under Section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly, exercised sparingly......" 10. The subsequent judgment of the Apex Court relied by the Counsel for the Opposite-Party No. 2 in the case of Rajan Kumar Machananda v. The State of Karnataka, 1990 (Supp.) SCC 132 which has not noticed the aforementioned judgment of the Supreme Court in the case of Municipal Corporation of Delhi (supra) in fact even otherwise is one which is a judgment under Article 142 of the Constitution of India as their Lordships in the said order had themselves indicated that "We are satisfied that this is a case where the High Court had no jurisdiction to entertain the "revision" (emphasis added). Moreover the aforementioned observations of the Apex Court were infact made in a peculiar set of facts and circumstances in relation to a proceeding arising out of release of a truck wherein release of truck was allowed by the learned Magistrate and the revision against such order of release had been dismissed by the Sessions Judge in exercise of power under Section 397 of the Code of Criminal Procedure. As a matter of fact, the Supreme Court in that context had depricated the order of the High Court setting aside the order of release of truck by holding that infact the States revision was not maintainable in view of the bar imposed under Section 397(3) of the Code of Criminal Procedure. As a matter of fact, the Supreme Court in that context had depricated the order of the High Court setting aside the order of release of truck by holding that infact the States revision was not maintainable in view of the bar imposed under Section 397(3) of the Code of Criminal Procedure. Thus in my view, not only the facts, circumstances and situation of the case of Rajan Kumar Machananda are clearly distinguishable but even otherwise the said judgment being one under Article 142 of the Constitution of India cannot be used as a binding precedent to unsettle long line of cases decided by the Apex Court itself with regard to the maintainability of a quashing application at the instance of a person whose revision application against an order taking cognizance and issuance of process had been dismissed by the Sessions Judge. In that view of the matter, I hold that this quashing application is maintainable and to that extent I reject the preliminary objection raised by the Opposite-Party No. 2. 11. Having regard to the fact that even Opposite-Party No. 2 agrees that there is no material against these two petitioners and there is nothing to connect them in the commission of the alleged offence, this Court has no option but to hold that the ends of justice would be served by quashing the entire criminal proceedings against the petitioners specially when there is not an iota of any material collected by the police during the course of investigation which can even remotely connect them in this case in any manner. Counsel for the Opposite-Party No. 2 at this stage wants to place reliance on affidavits of the witnesses showing certain allegations against the petitioner. I am afraid, these material being not on record cannot be now looked into at this stage. It has to be kept in mind that this is not a case where the Opposite-Party No. 2 disagreeing with the finding of police investigation and the final report had filed a protest petition and cognizance has been taken on the basis of any protest petition and the statement of witnesses examined under Section 202 of the Code of Criminal Procedure. The police infact as noted above, had submitted the final form against the petitioners and the Magistrate differing only with the findings of the police has passed the impugned order taking cognizance and, therefore, the order of the Magistrate must be supported with some material facts in the case diary and/or notes of any investigation prepared by the Police. It is true that even if the police does not file a charge-sheet against any person, the Magistrate can always differ but then there must be some material to show the complicity of the petitioners in the case diary. In absence of any material, the Magistrate, however, cannot take cognizance and issue process on his mere presumption. The order taking cognizance, therefore, passed in this case and issuing summons for facing trial against these two petitioners must be held to be bad. Consequently, the entire proceedings including the order taking cognizance, dated 17.3.2005 and the resultant revisional order so far it relates to these two petitioners are hereby quashed. 12. Before parting with I would like to make it clear that the revision application before the Sessions Judge was filed by four persons, including the two petitioners and, therefore, the quashing of the order taking cognizance and the revisional order would only govern the cases of the two petitioners, namely, Abul Kaish and Md. Zafir and no one else. Nothing said/observed in my this order would in any way affect the prosecution of the other accused persons. 13. With the aforementioned observations and directions, this application is allowed.