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2007 DIGILAW 1086 (PAT)

Bidha Sharma v. State Of Bihar

2007-07-09

ABHIJIT SINHA

body2007
Judgment 1. These nine petitioners herein who have been arrayed as accused in Banmankhi (Janki Nagar) P.S. Case No. 55/05 (arising out of Complaint Case No. 284 of 2005) through this application have prayed for quashing of the order dated 28.12.2005 passed by the learned Sessions Judge, Purnea, in Criminal Revision No. 377 of 2005 whereby while setting aside the order of cognizance dated 18.7.2005 passed by the Chief Judicial Magistrate, Purnea, has directed for passing fresh order of cognizance, challenge is also to the revised order of cognizance dated 1.2.2006 passed by the learned Chief Judicial Magistrate in the light of the directions given in the revisional order. 2. On Kailash Yadav filed Complaint Case No. 284 of 2005 before the learned Chief Judicial Magistrate, Purnea, alleging commission of offences under sections 147, 148, 379, 307 and 323 of the I.P.C. and sec. 27 of Arms Act at the hands of.the named accused. The said complaint petition was duly transmitted to the concerned police station under sec. 156 (3) Cr.P.C. and on the basis thereof Banmankhi (Janki Nagar) P.S. Case No. 55 of 2005 was registered. After due investigation the police submitted chargesheet only against six of the named accused for offences under sections 147, 148, 323 I.P.C. and the learned Chief Judicial Magistrate on persual of the records and case diary took cognizance thereunder against those six persons on 18.7.2005. However, the complainant- Opposite Party no.2 preferred Criminal Revision No. 377 of 2005 before the Sessions Court at Purnea, impugning the order dated 18.7.2005 of the learned Chief Judicial Magistrate and the learned Sessions Judge without hearing the petitioners passed orders at the stage of admission on 28.12.2005 setting aside the order of cognizance on a finding that none of the witnesses named in the complaint petition had been examined by the Investigating Officer who had also not cared for the supervision note of the Inspector of Police who had found in paragraph no. 46 of the case diary the case true for the offences under sections 307 and 379 I.P.C. also. 3. 46 of the case diary the case true for the offences under sections 307 and 379 I.P.C. also. 3. Assailing the impugned order of the learned Sessions Judge the learned counsel for the petitioners sought to submit that the learned Sessions Judge had passed the impugned order without appreciating the entire things and circumstances of the case and also without hearing the petitioners and had erroneously come to a finding by relying on paragraph no. 46 of the case diary which was the observations made by the Inspector of Police in his supervision note. The learned Sessions Judge had, accordingly, set aside the order dated 18.7.2005 passed by the Chief Judicial Magistrate, obvious of the fact that the supervision note, not being a part of the investigation is not included in the police paper and being a confidential official documents exchanged among the officials as information/recommendation, could not be relied upon. 4. The learned counsel further submitted that although the Chief Judicial Magistrate subsequently on the basis of the order passed by the revisional court had taken fresh cognizance notwithstanding the fact that there had been no further investigation and that no fresh evidence had come on record and as such the second order of cognizance was patently illegal. Referring to the case of Mani Lal Kesri Vs. State of Bihar reported in 2006(4) PLJR 32 the learned counsel sought to submit that taking of second cognizance without any fresh material or evidence could not be considered in consonance with the provision of sec. 173 (8) Cr.P.C. 5. There appears sufficient force in the argument of the learned counsel for the petitioners. On receiving the police report the Magistrate may take cognizance of offence under sec. 190 (1)(b) and straight way issue processes but he cannot change the order taking cognizance unless and until fresh material evidence become available or a supplementary chargesheet after reinvestigation has been ordered takes place. 6. In the instant case the learned Sessions Judge appears to have been swayed by the fact that the supervising authority in his supervision note had recommended certain things which was not accepted by the Investigating Officer. He also appears to have been swayed by the fact that the witnesses named in the complaint petition had not been examined by the Investigating Officer. However, there was no further investigation and no reliance could have been placed on the supervision note. He also appears to have been swayed by the fact that the witnesses named in the complaint petition had not been examined by the Investigating Officer. However, there was no further investigation and no reliance could have been placed on the supervision note. The Apex Court has put strong objection to such cases where reliance is placed on supervision note. In Sukhu Beldar Vs. State of Bihar reported in 2005(3) PLJR 495 it has been held that supervision note cannot be used by the prosecution as piece of material evidence against the accused. If any reference is made before any court, they are not to be taken note of by the said court. In these circumstance the Revisional order without any further examination and the second order of cognizance on the basis of revisional order are without jurisdiction. 7. Accordingly, the application is allowed and the impugned orders in question are hereby quashed. The initial order of cognizance dated 18.7.2005 of the learned Chief Judicial Magistrate is accordingly restored.