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2009 DIGILAW 46 (PAT)

Nand Kishore Singh v. State Of Bihar

2009-01-15

NAVIN SINHA

body2009
JUDGEMENT 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner lodged Kesaria P.S. Case No. 21/2002 under Section 307/34 of I.P.C. against certain accused persons on 24.2.2002. On 28.3.2002, the Investigating Officer submitted the prosecution report after investigation that the allegations were untrue, recommending proceedings against the petitioner under Sections 182 and 211 of the Indian Penal Code. The learned Chief Judicial Magistrate initiated Case No. NF20/ 2002, Trial No. 2836/2006 and passed orders of issuance of show cause notice to the petitioner. Without proper service of the same on him cognizance was then taken against him under Sections 182 and 211 of I.P.C. on 13.11.2006. 3. Apprehending foul play on the part of the Police, the petitioner had filed a Protest-cum-Complaint Petition on 18.3.2002 which came to be registered as Case no. Enquiry 221/2002/C-1826/2002 with regard to the same occurrence. By an order dated 23.7.2003 after enquiry the Magistrate took cognizance in the Protest-cum-Complaint Case under Sections 447 and 504 of I.P.C. against the accused persons. 4. Learned counsel for the petitionersubmits that under Section 195(1)(b) cognizance could not have been taken by the Magistrate under Section 211 of I.P.C. except on a complaint in writing of the Court concerned. The submission is that the offence thereunder, if any, was committed by the petitioner in relation to a proceeding in a case arising out of Kesaria P.S. Case No. 21/2002. He relies upon a decision of the Supreme Court reported in A.I.R. 1979 SC 777 (Kamalapati Trivedi V/s. The State of West Bengal) followed by a Bench of this Court in 2007(2) BBCJ 328 (Bir Bahadur Singh V/s. State of Bihar). 5. In the case of Kamiapati Trivedi (supra), the Court was considering challenge to an order issuing summons in a case under Section 211 of I.P.C. when the Police had found the case to be false and recommended action against the informant. The Apex Court discussed the options available to the Magistrate after an investigation report was submitted. The Magistrate could agree with the report of the Police and filed the proceedings. If he did not agree with the Police Report, he could order further investigation or hold that the evidence collected by the Police was sufficient and proceed to take cognizance. The Apex Court discussed the options available to the Magistrate after an investigation report was submitted. The Magistrate could agree with the report of the Police and filed the proceedings. If he did not agree with the Police Report, he could order further investigation or hold that the evidence collected by the Police was sufficient and proceed to take cognizance. This was to be done after consideration of the report and application of mind of the Magistrate in the context of the same. The Court then posed the question, "but then the problem to be solved is whether the order passed by the Magistrate pertains to his executive or judicial capacity". The Court concluded that an order passed by the Magistrate agreeing with the Police report and filing the proceedings is a judicial order determining the rights of the parties after application of mind. The order passed by the Magistrate in the proceeding has to be characterized as a Judicial Act. The Court concluded with the following conclusion at paragraph-61 :- "61. For the reasons stated, I hold that the complaint against Trivedi is in respect of an offence alleged to have been committed in relation to a proceeding in Court and that in taking cognizance of it the SDJM acted in contravention of the bar contained in the said clause (b), as there was no complaint in writing either of the SDJM or of a superior Court. In the result, therefore, I accept the appeal and, setting aside the order of the High Court, quash the proceedings taken by the SDJM against Trivedi." 6. In so far as the applicability of Section 182 I.P.C. is concerned, in the case of Bir Bahadur Singh V/s. State of Bihar reported in 2007(2) BBCJ 328 held by a Bench of this Court at paragraph-9 that Section 182 I.P.C. shall have no application where allegations be there under Section 211 I.P.C. "9. So far as the application under Section 182 I.P.C. is concerned, in view of the fact that cognizance has been taken on a matter in respect of a proceeding of the Court, Section 211 I.P.C. alone can be pressed into service and Section 182 I.P.C. shall not apply in such a proceeding under nature and circumstances, as referred to above." 7. An additional feature of the present is that what has been found to be incorrect and false by the Police has been found to have substance in an enquiry by the Court. The inherent contradiction has only to be noticed to allow this application. 8. In the result, the order dated 13.11.2006 as also the entire proceedings in trial no. 2836/2006 arising out of Case No. N.F.20/2002 originating from Kesaria P.S. No. 21/2002 pending before the Chief Judicial Magistrate, Motihari is hereby quashed. 9. The application stands allowed.