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2007 DIGILAW 1223 (PAT)

Bimal Kumar v. State Of Bihar

2007-07-26

ABHIJIT SINHA

body2007
Judgment 1. The two petitioners herein who figured amongst the named accused in Bikramganj RS. Case no. 19/2004 but were not sent up for trial alongwith the remaining others are aggrieved by the order dated 13.1.2007 passed by the learned Sub-divisional Judicial Magistrate, Bikramganj at Sasaram whereby, he notwithstanding having committed the case to the court of Sessions on 26.7.05 has subsequently accorded permission to the Officer Incharge of the Police Station to further investigate in the matter in respect of these petitioners and that too when the case is pending before the court of Sessions at a stage wherein prosecution evidence has been closed. 2. To unwind the piquant situation the facts of the case which lie within a narrow compass may be noticed with brevity. A partially burnt Manju Devi gave her fardbeyan to the S.I. of Bikramganj RS. at the Bikramganj Sub-divisional hospital at about 8 P.M. on 18.2.2004 inter alia alleging that her husband in laws and relatives of the husband, as named in the fardbeyan had earlier that day at about 4.30 P.M. set her on fire with an intention to kill her for non-fulfilment of dowry and that prior thereto she was frequently threatened with dire consequence. It was also alleged that these very people on an earlier occasion killed the wife of Jawahar Prasad, uncle in law, by burning her. 3. On the basis of the said fardbeyan Bikramganj RS. Case no. 19/2004 was initially registered under sections 307, 498A/34 I.RC and 3/4 of the Dowry Prohibition Act to which sec. 304B I.P.C. was added subsequently following the death of Manju Devi. 4. After due investigation the Investigating Officer finding no incriminating material against these petitioners to connect them with the alleged crime discharged them and submitted a chargesheet against all the FIR named accused. Eventually, the case was committed to the court of Sessions on 26.7.2005. 5. It appears that notwithstanding the commitment of the case to the court of Sessions, the Officer Incharge Bikramganj P.S. filed an application in the court of the learned Sub-divisional Judicial Magistrate, Bikramganj on 12.1.2006 seeking permission to further investigate into the matter in respect of these two petitioners who had been discharged due regard being had to the supervision note of the Superintendent of Police who had ordered for the arrest of these two petitioners. The procedural law notwithstanding, the learned court without applying his mind to the situation at hand by order dated 13.1.2007 mechanically accorded permission to the police for further investigation. 6. It has been submitted by learned counsel for the petitioners that the learned Magistrate having committed the case to the court of Sessions become functus officio and as such has no jurisdiction to entertain any application whatsoever of the police and that too when based on the supervision note of a superior officer. The impugned order has also been assailed on the ground of the same being passed without recording his satisfaction or assigning reasons therefor. 7. It would appear from perusal of the application submitted by the Officer Incharge (annexure 3) that the Superintendent of Police in his report III has recommended for arrest of these petitioners. The report of the Superintendent was available with the Investigating Officer when. he submitted the chargesheet. It also appears from annexure 3 that the Officer incharge has suddenly found substance in the statements of the brother and father of the deceased wherein they had allegedly named the petitioners and that there was no reason to disbelieve them. This matter was too available before the investigating Officer at the time of submission of the chargesheet. It has to be presumed that the Investigating Officer ignoring the report of the Superintendent of the Police and statements of the brother and father of the deceased found no cogent material to send up the two petitioners herein. In that situation there was no other reason for the Officer Incharge to have made a prayer for further investigation in the matter when no fresh material had come to hand. 8. There is another aspect of the matter. Once a case has been committed to the court of Sessions, the Judicial Magistrate committing the case is no more in seisin of the case and therefore, in the instant case, he had no jurisdiction to accord permission to the Officer Incharge to proceed with further investigation against the two petitioners who stood discharged. 9. It is now well settled that once a person is discharged no cognizance can be taken against him in respect of the same offence or offences unless fresh material comes against him in course of trial. 10. In the instant case, in the resultant Sessions trial the prosecution evidence is said to have been closed. 9. It is now well settled that once a person is discharged no cognizance can be taken against him in respect of the same offence or offences unless fresh material comes against him in course of trial. 10. In the instant case, in the resultant Sessions trial the prosecution evidence is said to have been closed. Had any material showing the involvement or complicity of these two petitioners in the alleged crime surfaced in the deposition of the witnesses it was open to the Sessions Judge to summon the petitioners to face trial under the provision of section 319 Cr.P.C. Apparently no such situation had arisen or else a prayer would have been made by the conducting Prosecutor for summoning the petitioners to face trial. 11. Apparently the steps taken by the learned Sub-divisional Judicial Magistrate appears to be beyond the power vested in him and is non-est. The learned Magistrate appears to have usurped or misapplied the power which was not bestowed upon him and as such the impugned order can not be sustained in the eye of law. Accordingly, the order dated 13.1.07 passed by the learned Subdivisional Judicial Magistrate Bikramganj at Sasaram being in excess of the power can not be sustained and has to be quashed and the application is allowed.