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2009 DIGILAW 519 (PAT)

Tarkeshwar Singh v. State Of Bihar

2009-04-01

NAVIN SINHA

body2009
JUDGEMENT 1. Heard learned counsel for the petitioner, for the State and for Opposite Party No. 2. 2. Mashrakh P.S. Case No. 9 of 1996 came to be lodged on 11.1.1996 under Sections 307 and 364 of the Penal Code, Section 27 of the Arms Act, to which Sections 302 and 201 of the Penal Code was added later when the injured was deceased. 3. The F.I.R. alleges that 7-8 motorcycles with two persons on each, came armed with rifles and guns. The petitioner was one of them. He ordered firing, after alighting from the motorcycle. Named coaccused Rustam Khan fired, Devnath Rai and Munna Singh loaded the injured on the motorcycle and took him away. The F.I.R. states that the informant was an eye witness to the occurrence. 4. The Police submitted charge-sheet on 28.4.1996 against the named co-accused Munna Singh only while the investigation was kept pending against other co-accused. The Magistrate took cognizance on 10.5.1996 against the charge-sheeted accused as also the petitioner, co-accused Dev Nath Rai and Rustam Khan also. The petitioner appealed the order of cognizance in Cr. Misc. No. 6124 of 1998 which was dismissed on 1.2.2007. The Special Leave Petition against the order of this Court was also dismissed on 21.9.2007 at Annexure-B to the counter affidavit. In pursuance of the order of cognizance, summons has been issued against the petitioner on 23.3.2007 presently assailed. 5. Learned counsel for the petitioner submitted that notwithstanding that cognizance may have been taken against the petitioner also while investigation had been kept pending against him, final report ultimately came to be submitted on 28.2.2003 when the petitioner and co-accused Dev Nath Rai have not been sent up for trial and only co-accused Rustam Khan has been charge-sheeted in the supplementary charge-sheet. He submits that in view of the final report, the Magistrate before issuing summons to the petitioner erred in not complying with the provisions of Section 204 Cr.P.C. inasmuch as there is nothing in the impugned order dated 23.3.2007 as to on what basis the Magistrate formed the opinion that notwithstanding the submission of the final report after the order of cognizance, that the petitioner was required to be summoned to face trial. The submission, therefore, is that the order is vitiated in law. The submission, therefore, is that the order is vitiated in law. Reliance is placed on the judgment of the Supreme Court reported in (1998)5 SCC 749 (Pepsi Foods Limited and Others vs. Special Judicial Magistrate & Ors.) more particularly paragraph 28 of the same to urge that summoning an accused in a criminal case was a serious matter not to be done lightly. 6. Reliance has next been placed on a Bench decision of this Court in 2003(4) PLJR 81 (Tarkeshwar Singh vs. The State of Bihar) more particularly paragraph 14. 7. Learned counsel for Opposite Party No. 2 opposing the application submits that once the materials of investigation were before the Magistrate, the Magistrate was satisfied to take cognizance upon the same and the challenge to the order of cognizance has been rejected, the present application was nothing but an abuse of the process of law to stall the trial in one manner or the other. 8. The petitioner obtained interim stay of the proceeding in Cr. Misc. No. 6124 of 1998 against the order of cognizance, which ultimately was rejected by this Court and upheld by the Apex Court. In this application, questioning the issuance of summons, the proceedings have again been stayed on 26.2.2008. As a result, no progress has been allowed to be made in the Police case instituted as far back as 11.1.1996, nearly 13 years later. 9. It is not in controversy that the petitioner has neither obtained anticipatory bail/regular bail, much less appeared before the court below till date. The only submission is that in view of the stay order, there was no occasion for him to have any apprehension of arrest. 10. In so far as the decision of this Court in the case of Tarkeshwar Singh (supra) is concerned, reliance thereupon is completely misconceived. Issuance of summons after an order of cognizance and issuance of summons under Section 319 Cr.P.C. are completely different and apply at different stages of the trial. A Magistrate takes cognizance under Section 190 Cr.P.C. at the initial stage of the trial. At this stage the act is based on materials collected during police investigation. The options available to the Magistrate are to accept the Police Report and take cognizance, differ with the Police Report and take cognizance, or postpone the cognizance by requiring further investigation. A Magistrate takes cognizance under Section 190 Cr.P.C. at the initial stage of the trial. At this stage the act is based on materials collected during police investigation. The options available to the Magistrate are to accept the Police Report and take cognizance, differ with the Police Report and take cognizance, or postpone the cognizance by requiring further investigation. The stage at which summons are issued under Section 319 Cr.P.C. is entirely different. Under the latter provision a person has had the benefit of an investigation, accepted by the Court, when his name transpires during trial on the deposition of witnesses. Because the person may have had the benefit earlier of a police report and the order of the Court passed thereupon, Section 319 Cr.P.C. has been interpreted as making an inroad into the liberty of such a person not to be lightly exercised. This power under Section 319 Cr.P.C. has no relevance to an order of cognizance taken at an earlier stage of the trial. 11. In AIR 2001 SC 2747 [: 2001(4) PLJR (SC)163] (M/s SWIL Ltd. vs. State of Delhi & Anr.), the High Court held that the Court below "was totally unjustified in summoning the petitioner when the petitioner was not shown in the column of accused persons in the charge-sheet", relying upon Section 319 Cr.P.C. that such a person could be summoned under Section 319 Cr.P.C. only after the evidence had been recorded. Setting aside the judgment the Supreme Court at paragraph 7 held as follows: "7. Further, in the present case there is no question of referring to the provisions of Section 319 Cr.P.C. That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate was holding inquiry as contemplated under S. 2(g) Cr.P.C. nor had the trial started. He was exercising his jurisdiction under S. 190 of taking cognizance of an offence and issuing process. There is no bar under S. 190 Cr.P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet." 12. There can be no quarrel with the proposition that issuance of summons is a serious matter. There can be no quarrel with the proposition that issuance of summons is a serious matter. In the judgment of Pepsi Foods (Supra) relied upon by the petitioner, the observation of the Supreme Court came to be made in the background of a complaint case when it was observed that it is not as if a complainant has lodged a complaint making certain statements therein leading automatically to an order of cognizance after examination of witnesses. That, "the Magistrate is not a silent spectator at the time of recording of preliminary evidence before summoning of the accused". The Magistrate has to carefully scrutinize the evidence brought on record and put questions himself to the complainant and the witnesses to find out the truthfulness of the allegations or otherwise. 13. In the present case, the allegations arise not out of a complaint but out of an F.I.R. If the Magistrate is required to call the persons whose statement has been recorded by the Police under Section 161 Cr.P.C, examine them and then decide whether summons be issued or not, would lead to an absurd situation not contemplated by the Cr.P.C. This is not what the law mandates. "The Magistrate is not bound in such a situation is to follow the procedure laid down in Sections 200 and 202 of the Cr.P.C. while taking cognizance under 190 Cr.P.C. though it is open to him to act under Section 200 or 202 Cr.P.C. also. (2004)7 SCC 768 (Gangadhar Janardan Mhatre vs. State of Maharashtra & Ors.) 14. At the stage of issuance of Summons the Magistrate is not required to write a reasoned order, reiterated by the Supreme Court in (2000)1 SCC 722 (Kanti Bhadra Shah vs. State of West Bengal) (paragraph 12). 15. A copy of the order of cognizance dated 10.5.1996 has been placed before this Court during the course of submissions. 16. Peculiar are the ways of the Police. A crime is committed. The petitioner is a named accused alongwith certain others. The transaction is one. The Police investigates. It is satisfied that some of the named co-accused has committed the offence. The commencement of the investigation is based on F.I.R. of an eyewitness. 16. Peculiar are the ways of the Police. A crime is committed. The petitioner is a named accused alongwith certain others. The transaction is one. The Police investigates. It is satisfied that some of the named co-accused has committed the offence. The commencement of the investigation is based on F.I.R. of an eyewitness. Despite being satisfied of the prima facie truthfulness of the allegation, charge-sheet is submitted against one person only while it is kept pending for further investigation against others named as accused, as distinct from unnamed accused which may require finding out the other actors,involved. This Court would presume that once an investigation has commenced the Police shall carry on investigation with regard to all of the named accused and if it finds materials against one of the accused and submits charge-sheet against him, surely there has to be materials against other accused. Section 173 of the Cr.P.C. does not visualize any Police Report of the kind invented by the Police by submitting partial Police Reports. 17. This Court has no hesitation in holding that often, the police deliberately resort to this procedure during investigation only with the purpose to deflect attention and provide advantage to an accused. The impression given by a partial charge-sheet is that the police is seriously investigating. An accused intended to be shielded is kept in the shadow of further investigation in a partial charge-sheet. When the heat of the crime and the outcry of the Society subsides, comes a final report not sending up the favoured accused for trial. 18. Cognizance is taken of the offence and not the offender. Summons are then issued to the offender to face trial for the offence. 19. This Court has no hesitation in holding that when the Magistrate took cognizance on 10.5.1996 he examined the case diary properly. He refers to paragraphs 35, 36, 37, 43 and 56 to reflect his satisfaction to take cognizance against the petitioner also, notwithstanding the claim of the Police that investigation against the petitioner was still pending. Obviously the Magistrate was not satisfied with the justification of the Police that investigation against the petitioner was still pending. If the Magistrate had the power to differ with the Police Report and take cognizance which he did, any subsequent final report not sending up the petitioner for trial, to this Court, is inconsequential. Obviously the Magistrate was not satisfied with the justification of the Police that investigation against the petitioner was still pending. If the Magistrate had the power to differ with the Police Report and take cognizance which he did, any subsequent final report not sending up the petitioner for trial, to this Court, is inconsequential. The nature of the allegations against the petitioner, the informant being an eye-witness, the application challenging the order of cognizance having been already rejected, the petitioner appears to have resorted to every possible recourse open to him to stall the trial, he has succeeded for 13 years, it is now time for him to acknowledge the supremacy of the law. 20. In AIR 1995 SC 231 (State of Maharashtra vs. Sharad Vinayak Dongre & Ors.), partial charge-sheet was submitted while investigation was kept pending against some of the accused. The CJM took cognizance against all the accused. The challenge under Section 482 Cr.P.C: before the High Court was that the court could not take cognizance on an incomplete police report and therefore the issuance of process was vitiated. The High Court upheld the challenge. Setting aside the order the Supreme Court at paragraph 8 of the judgment held: "8. in the instant case, the Chief Judicial Magistrate was obviously satisfied with the sufficiency of the materials placed by the prosecution before him with the report for taking cognizance of the offence and he therefore proceeded further after taking cognizance and directed the issuance of process against the respondents. The prayer of the investigating agency seeking permission to further investigate and submit a supplementary charge-sheet could not vitiate the cognizance taken by the Chief Judicial Magistrate nor denude him of his jurisdiction to take cognizance of the offence. The High Court while quashing the order dated 21.11.1986,did not record any finding to the effect that the exercise of discretion by the Magistrate in taking cognizance of the offence and issuing process was in any way improper or thai the cognizance was taken on the basis of the material on which no reasonable person could have taken cognizance. The High Court quashed the order only because it was influenced by the application filed by the prosecution seeking permission to record additional evidence and file a supplementary charge-sheet and from that it inferred that the report filed by the prosecution was incomplete. The High Court quashed the order only because it was influenced by the application filed by the prosecution seeking permission to record additional evidence and file a supplementary charge-sheet and from that it inferred that the report filed by the prosecution was incomplete. High Court even overlooked the fact that the application filed by the prosecution had not even been allowed by the Chief Judicial Magistrate and had been only adjourned for orders. We cannot persuade ourselves to accept the view of the High Court that if the Investigating Officer terms a police report as "incomplete", it takes away the jurisdiction of the Magistrate to take cognizance of the offence, even if in the opinion of the Magistrate, the material is sufficient for him to be satisfied that it was a fit case for him to take cognizance of the offence. The Magistrate is not bound by the label given to the report or the charge-sheet by the Investigating Officer and it is for him to decide whether the report and the material on which it is based is sufficient for him to take cognizance or not. It is pertinent to notice that the police report submitted before the Chief Judicial Magistrate, did not even say that it was an "incomplete" charge-sheet or police report. The High Court was, therefore, not at all justified in opening that since the charge-sheet on the prosecutions own showing was "incomplete", the Chief Judicial Magistrate could not have taken cognizance and quash the order of the CJM taking cognizance of the offence. We may also record at this stage that Shri D-holakia, the learned Senior Counsel appearing for the appellant, submitted before us that apart from the material already filed with the police report/charge-sheet, on the basis of which the Chief Judicial Magistrate took cognizance on 21.11.1986, the State does not intend to file any further material by way of any supplementary charge-sheet before the trial court. The statement of Shri Dholakia, adequately protects the interest of the respondents. In view of the statement of Mr. Dholakia, we are relieved of the necessity to deal with the effect of Section 173(8) Cr.P.C. in this case." 21. The application is rejected. The trial court is directed to proceed with the trial in accordance with law expeditiously and promptly considering that no progress has been allowed to be made in the trial for 13 long years. Dholakia, we are relieved of the necessity to deal with the effect of Section 173(8) Cr.P.C. in this case." 21. The application is rejected. The trial court is directed to proceed with the trial in accordance with law expeditiously and promptly considering that no progress has been allowed to be made in the trial for 13 long years. 22. The Registry of this Court is directed to forthwith remit the case diary to the Court below so that the trial is not hampered for non availability of the same and commences.