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Madhya Pradesh High Court · body

2008 DIGILAW 266 (MP)

Mangi Lal v. State of M. P.

2008-02-19

B.M.GUPTA

body2008
Judgment ( 1. ) - Although both the petitions have been filed by different petitioners impugning the different orders, yet both are arising out of one case, hence, have been heard together and are being disposed of by this common order. ( 2. ) VIDE M. Cr. C. No. 4256/05 order dated 13th July, 2004 and vide M. Cr. C. No. 4400/ 05 order dated 30th August, 2005 passed by the JMFC, Mungawali in criminal case no. 111/04 have been impugned, by which cognizance under Sections 302 and 201 of ipc/302/34, 201/34 and 120b of IPC has been taken against the petitioners while applying the provisions of Section 190 of cr. P. C. ( 3. ) 3a. The factual matrix in brief, being necessary to be known, is that with regard to the death of Kallu @ Balkishan S/o babulal Jatav merg No. 1/03 was registered at police station, Bahadurpur, Distt. Guna. After conducting enquiry and coming to the conclusion that the mode of death is homicidal, fir crime No. 1/03 was registered against unknown persons under Section 302/201 of IPC at the same police station. After conducting investigation, charge-sheet was filed on 15th June, 2004 for the offence punishable under Section 304/201 of IPC against only two petitioners viz. Mangilal @ Manga and Tulsiram. On 131h July, 2004 the learned Magistrate vide first impugned order, while observing that the offence punishable under Sections 302, 201 of IPC appears to be made out on the basis of the charge-sheet papers, passed the impugned order against the aforementioned two petitioners. This order has been impugned firstly on the ground that upto that time, there was no document available on the record in support of this order. Countering the contention, Shri Mahore, the learned deputy Govt. Advocate, has submitted that on the basis of the statement of Harnam singh recorded under Section 164 of Cr. P. C. , offence of murder has been made out. But, on perusal of the statement of Harnam singh recorded under Section 164 of Cr. P. C. on 10th April, 2003, it does not appear that he is stating anything with regard to the offence of murder committed by these two petitioners. His statement is also based on the information given by these two petitioners. But, on perusal of the statement of Harnam singh recorded under Section 164 of Cr. P. C. on 10th April, 2003, it does not appear that he is stating anything with regard to the offence of murder committed by these two petitioners. His statement is also based on the information given by these two petitioners. The relevant part of his statement goes as under: Thus, he only states that as per the information given by the petitioners, the deceased fell down from a tractor and died and they kept his dead-body near the culvert of Athaikheda. The other statements recorded during investigation of Tulsiram, Manga, both the petitioners, Sangram Singh, pappu, Bhagwandas, Nimma Khan, narayan and Harnam are also to the same effect. These witnesses have also not stated anything with regard to committing murder by these two petitioners. Even on behalf of the State, except the aforementioned statement of Harnam, nothing has been mentioned in support of this impugned order. Although as per the post-mortem report dated 3rd January, 2003, the cause of death has been mentioned as homicidal in nature but on this ground alone, it cannot be said that there is evidence against the petitioners that they have committed the murder. In view of this, the observation of the learned Magistrate that on the basis of the documents on record, the offence of murder appears against the petitioners cannot be sustained as the same appears erroneous. 3b. With regard to the same impugned order dated 13. 7. 04 related to M. Cr. C. No. 4256/05, a preliminary objection has also been raised on behalf of the State, that the impugned order dated 13th July, 2004 was revisable, but instead of filing the revision, petition has been filed, hence, it is not maintainable. As mentioned hereinabove, the charge-sheet was filed against the petitioners under sections 304 and 201 of IPC. Instead of taking cognizance under the same offences, if the cognizance has been taken by the learned Magistrate under Sections 302 and 201 of IPC, the order being interlocutory, does not appear to be revisable. ( 4. ) WITH regard to another petition M. Cr. C. No. 4400/05 in which order dated 30th august, 2005 has been impugned, on perusal of the copy of the order-sheet dated 27th December, 2004, it appears that one application under Sections 319 (2) and 190 of Cr. ( 4. ) WITH regard to another petition M. Cr. C. No. 4400/05 in which order dated 30th august, 2005 has been impugned, on perusal of the copy of the order-sheet dated 27th December, 2004, it appears that one application under Sections 319 (2) and 190 of Cr. P. C. was filed for taking cognizance against other two petitioners of this petition i. e. Sangram Singh and Narayan. The case was fixed for reply of the application on various dates. Vide order dated 28th march, 2005, it appears that the learned magistrate directed the applicant/complainant bhagwan Das, the brother of the deceased, that if in support of the application some evidence is available with him that can be produced. On 18th May, 2005 the statements of applicant Bhagwan Das and his brother Narayan were recorded, under section 164 of Cr. P. C. Thereafter the case was fixed for consideration of the application on 21st June, 2005. On 21st June, 2005 one application was moved on behalf of bhagwan Das that he wants to produce one more witness Bablu, and for whom he sought time. The same was given. His statement was recorded on 3rd August, 2005 under Section 164 of Cr. P. C. Thereafter, on the basis of this new evidence, on 30th August, 2005, the second impugned order has been passed taking cognizance against these two petitioners for the offence punishable under Sections 302/34, 201/34 and 120b of ipc. ( 5. ) THE second order has been impugned on behalf of the petitioners on the ground that the learned Magistrate was not empowered to conduct enquiry and to record statements of aforementioned three witnesses under Section 164 of Cr. P. C. and thus the statements cannot be used against the petitioners as the base of the impugned order. ( 6. ) ADMITTEDLY, the charge-sheet was filed for the offence punishable under Section 304/201 of IPC and it is also not disputed that the offence punishable under Section 304 of IPC is exclusively triable by the Court of Session. In such cases, the provisions of section 209 and 207 of Cr. P. C. are applicable. Section 209 of Cr. P. C. provides commitment of the case to the Court of Session when the offence is triable exclusively by it. In such cases, the provisions of section 209 and 207 of Cr. P. C. are applicable. Section 209 of Cr. P. C. provides commitment of the case to the Court of Session when the offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit, after complying with the provisions of Section 207 or Section 208 of cr. P. C. , as the case may be etc. etc. What is relevant for the present case is, that in such cases, the Magistrate is obliged to comply the provisions of Section 207 or 208 and to commit the case to the Court of Session. The provisions of Section 208 of Cr. P. C. being related to the case instituted otherwise than police report i. e. on a private complaint, hence, not relevant for the present dispute and not required to be considered herein this order. Section 207 of Cr. P. G. provides that in any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following: (i) the police report; (ii) the first information report recorded under Section 154; (iii) the statements recorded under sub-section 3 of Section 161 of all persons; (iv) the confessions and statements, if any, recorded under Section 164; (v) any other document etc. ( 7. ) ON perusal of both the provisions of section 209 and 207 of Cr. P. C. , it appears that upon filing of a charge-sheet by the police for such an offence which is exclusively triable by the Court of Session, as in the present case, the learned Magistrate was obliged to comply the provisions of section 207 of Cr. P. C. without any delay and to commit the case to the Court of Session. Holding an enquiry upon such application under Section 319 (2) and 190 of Cr. P. C. , as it has been filed in this case and presently impugned before this Court, is nowhere provided. The learned Magistrate was either to take cognizance under Section 190 (b) of cr. Holding an enquiry upon such application under Section 319 (2) and 190 of Cr. P. C. , as it has been filed in this case and presently impugned before this Court, is nowhere provided. The learned Magistrate was either to take cognizance under Section 190 (b) of cr. P. C. , which provides taking cognizance on a police report or to direct the police for further investigation. If the charge-sheet was filed under aforementioned offences punishable under Section 304/201 of IPC, and the accused were appearing before the learned Magistrate, considering the fact that the offence for which the charge-sheet has been filed is exclusively triable by the court of Session, the learned Magistrate was to commit the case for trial to the Court of Session, as provided by Section 209 of cr. P. C. . As provided in Section 207 (iv) of cr. P. C. the confessions and the statements recorded under Section 164 of Cr. P. C. of which the copies were required to be given to the accused persons are related to the statements recorded, during investigation because the words used in Section 207 of cr. P. C. that the learned Magistrate shall furnish to the accused such copies without delay - indicate that if along with the charge-sheet such statements under Section 164 of Cr. P. C. are included recorded during investigation, the copies of those documents were required to be supplied to the accused persons. In view of these provisions the contention on behalf of the petitioners appears correct and appears to be sustained that the learned Magistrate was not empowered to hold an enquiry upon receiving this application and to record the statements of the witnesses under Section 164 of Cr. P. C. ( 8. ) THERE is no dispute between the parties and as appears from the impugned order, the cognizance against these petitioners i. e. Sangram Singh and Narayan has been taken on the basis of these statements under Section 164 of Cr. P. C. , which appears erroneous and also an abuse of the process of the Court. ( 9. ) AS mentioned hereinabove, the impugned application has been filed under two provisions of Cr. P. C. ; first under Section 319 (2) and second under Section 190. On perusal of Section 319 (1) of Cr. P. C. , which appears erroneous and also an abuse of the process of the Court. ( 9. ) AS mentioned hereinabove, the impugned application has been filed under two provisions of Cr. P. C. ; first under Section 319 (2) and second under Section 190. On perusal of Section 319 (1) of Cr. P. C. , it appears that where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed an offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed and sub-section (2) of Section 319 of Cr. P. C. provides that where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. It is well settled now, that the word evidence as used in this provision is the evidence based on the statements recorded by the Court and it does not include the evidence collected by the police during investigation. The word enquiry which has been used in this provision is not related to a case instituted on a police report, because as per the provisions related to the committal of the case provided by Code of Criminal Procedure, 1973, the requirement of conducting an enquiry has been omitted, as the same was provided by the old Code of Criminal Procedure, 1898. This word enquiry may have a relation to the case instituted otherwise than a police report, i. e. a private complaint for which an enquiry has been provided under Section 202 of Cr. P. C. As the present case is not based on a case instituted otherwise than a police report, hence, being irrelevant, giving any observation by this Court at this stage is not required about the word enquiry as to whether that relates to those cases instituted on a private complaint or not. But i am of the considered opinion that in a case instituted in Police Report, if it appears to the Magistrate that the offence is exclusively triable by the Court of Session, he has no option but to commit the case for trial to the Court of Session or to order for further investigation without accepting the charge-sheet. But i am of the considered opinion that in a case instituted in Police Report, if it appears to the Magistrate that the offence is exclusively triable by the Court of Session, he has no option but to commit the case for trial to the Court of Session or to order for further investigation without accepting the charge-sheet. For the sake of repetition, after filing of the charge-sheet, holding any sort of enquiry by the learned Magistrate is not provided. ( 10. ) DESPITE repeated asking, nothing that sort of provision could have been mentioned or shown even on behalf of the State. It is simply submitted that on the basis of these statements recorded under Section 164 of Cr. P. C. by the learned Magistrate, after filing of the charge-sheet, the offence of murder appears to have been committed by these two petitioners and in that way, order is justified. Without observing anything with regard to the merits of these three witnesses, it is suffice to observe that if at all the complainant is not satisfied with the charge-sheet filed by the police in the case, he is free to file a private complaint under the provisions prescribed in chapter XV of Cr. P. C. (Section 200 to 203 of Cr. P. C. ). ( 11. ) AS discussed hereinabove, on the documents filed along with the chargesheet, there appears no evidence of murder against any of the four petitioners, hence, both the orders related to both the petitions being erroneous and an abuse of the process of the Court, deserve to be set aside. ( 12. ) CONSEQUENTLY, both the petitions are allowed and both the impugned orders are set aside. Petitions allowed.