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2008 DIGILAW 326 (JHR)

Nand Kishore Mandal v. State Of Jharkhand

2008-03-16

D.K.SINHA

body2008
JUDGMENT D.K. Sinha, J. 1. The petitioner has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. for the quashment of the order impugned, whereby and whereunder the C.J.M., Pakur took cognizance of the offence under Sections 323, 341 & 307 r/w Section 34 in Maheshpur P.S. Case No. 41 of 2006 corresponding to G.R. No. 163 of 2006 against the accused persons including the petitioner Nand Kishore Mandal. The prosecution story lies in a narrow compass. 2. The informant Sanik Roy delivered his Fard Bayan at the Primary Health Centre, Maheshpur on 15.3.2007 narrating that on the day of reporting at about 21 hours while he was returning from his duty, the petitioner inflicted blow with the rod from his behind on the P.C.C. road opposite his house as a result of which he fell down sustaining injuries. He was removed to P.H.C. where he came to learn from his brother Moti Roy that he as well as his wife also sustained injuries in assault. Disclosing the genesis, the informant narrated that there was old litigation with the petitioner Nand Kishore Mandal and that Moti Roy would explain to the cause of his injuries. He further narrated that Gautam Mandal and Nipen Mandal had assaulted them with intention to commit their murder. The F.I.R. was instituted against all the named accused persons viz. Nand Kishore Mandal, Gautam Mandal & Nipen Mandal for the alleged offence under Sections 341, 323, 307/34 I.P.C. but the police after investigation submitted charge-sheet only against Gautam Mandal and Nipen Mandal exonerating the petitioner Nand Kishore Mandal from his criminal liability for the alleged offence under Sections 341/323/34 I.P.C. though the case was instituted Initially under Section 307 I.P.C. 3. The C.J.M., Pakur by the order impugned dated 16.11.2006 on the receipt of the charge-sheet under Section 173(2) Cr.P.C. and upon perusal of the material took the cognizance of the offence under Sections 323/341/307/34 I.P.C. against the accused Gautam Mandal, Nipen Mandal as also against the petitioner Nand Kishore Mandal which is under challenge in the Instant petition. 4. The main thrust of the learned Counsel was that the C.J.M., Pakur had no jurisdiction under Section 190 of the Code of Criminal Procedure to take cognizance of the offence against the petitioner who was not sent up by the police as because no material was found against him in course of investigation. 4. The main thrust of the learned Counsel was that the C.J.M., Pakur had no jurisdiction under Section 190 of the Code of Criminal Procedure to take cognizance of the offence against the petitioner who was not sent up by the police as because no material was found against him in course of investigation. As a matter of fact according to the learned Counsel, the petitioner Nand Kishore Mandal was working as Generator Operator in B.S.N.L., Maheshpur and at the relevant time, he was on duty, hence no chance for his participation in the alleged occurrence. This fact find corroboration in paragraph No. 29 of the case diary. But the learned Counsel submitted that the C.J.M., Pakur, lost sight of the fact and took cognizance of the offence against the petitioner as well only upon speculation that according to the Fard Bayan the first blow with rod was inflicted by the petitioner from behind the back of the informant in the night, but admittedly without disclosing the source of light for identification. 5. The impugned cognizance order dated 16.11.2006 indicates that a protest petition was filed on behalf of the informant on 18.9.2006 after the charge- sheet was submitted, praying therein, that he had sustained grievous injury on his head by the accused persons as a result of which he remained in coma and had undergone treatment at Kolkata. Yet, taking advantage of his long absence, the accused persons influenced and in collusion with them, the police submitted charge-sheet under Sections 341/323/34 I.P.C. The informant submitted therein for taking cognizance of the offence as also under Section 325/307 I.P.C. against the accused persons on the basis of the C.T. scan report of the brain of the informant. Upon perusal of the materials on the record and that the first stroke was dealt by the petitioner Nand Kishore Mandal with rod, and that he was exonerated from his criminal liability by the Investigating Officer for he not being sent up for trial, the C.J.M., Pakur, upon finding a prima facie case and an his subjective satisfaction took cognizance of the offence as also against the petitioner by Inclusion of Sections 307/34 I.P.C. over and above Section 323/341 I.P.C. and I do not find any illegality therein which was within his jurisdiction vested to him under Section 190(1)(b) of the Cr.P.C. 6. In Minu Kumari and Anr. In Minu Kumari and Anr. v. State of Bihar and Ors. reported in (2006) 4 S.C.C. 389 the Apex Court held that: When a report forwarded toy the police to the Magistrate under Section 173(2)(1) is placed before him several situations arise: the report may conclude that an offence appears to have been committed by a particular person or persons and In such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further Investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he again has option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation had made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. 7. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. 7. In the facts and circumstances, I observe that the learned Counsel for the petitioner failed to show any convincing reason and legal ground to call for interference in the cognizance order passed by the C.J.M., Pakur in Maheshpur P.S. Case No. 41 of 2006 corresponding to G.R. No. 163 of 2006. However, the order would not preclude the petitioner to agitate the matter, if so advised, at the time of framing of charge. There being not merit, this petition is dismissed.