Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 705 (JHR)

Nagendra Soren v. State of Jharkhand

2010-07-06

D.G.R.PATNAIK

body2010
Order Heard counsel for the petitioner arid counsel for the State. 2. The petitioner in this application under Section 482 Cr.P.C. has challenged the order of cognizance passed by the learned court below for the offence under Sections 366A and 363 of the Indian Penal Code rejecting the petitioner's prayer for his discharge. 3. The facts of the case as appearing from the FIR filed by the informant/victim girl lodged at the Police Station on 17.7.2006, is that on 15.7.2006 at about 11 pm, two persons Sunil Kumar Mandal and Nagendra Soren (petitioner) forcibly entered into her house and after gagging her mouth, they forcibly took her to some unknown place. When the girl was found missing from the house, a missing report was lodged by the members of the family at the police station. On the next day, i.e. on 16.7.2007, on the basis of confidential information, the police accompanied by the family members could recover the girl from the matrimonial house of the petitioner Nagendra Soren. The victim girl revealed the manner in which she was forcibly kidnapped from her house and taken to the matrimonial house of the accused Nagendra Soren and stated that she was pressurized by the kidnappers to agree for her marriage with another person against her will. 4. After concluding the investigation, the Investigating Officer submitted a final report declaring therein that the case was a mistake of fact and therefore did not recommend the trial of the accused persons including the petitioner. 5. The learned Chief Judicial Magistrate however, after perusing the police report and statement of the witnesses including the victim girl, proceeded to take cognizance of the aforementioned offences against the petitioner. 6. learned counsel for the petitioner has challenged the impugned order of cognizance on the ground that it is bad in law as well as on facts. Learned counsel submits that the police, after investigation, has not found any material evidence to warrant the prosecution of the petitioner for the alleged offences, hence, the Magistrate has no authority to refuse to accept the police report and proceed against the petitioner. 7. In support of his contentions, learned counsel would refer to and rely upon a judgment of this Court in the case d Md. Munif @ Sardar Manifuddin Quraishi @ Munif Kasai vs. The State of Jharkhand, 2009(2) JLJR 579 . 8. 7. In support of his contentions, learned counsel would refer to and rely upon a judgment of this Court in the case d Md. Munif @ Sardar Manifuddin Quraishi @ Munif Kasai vs. The State of Jharkhand, 2009(2) JLJR 579 . 8. Learned counsel for the State, on the other hand, submits that the learned Magistrate is not bound to accept the report submitted by the Investigating Officer. Rather, the Magistrate is legally obliged to peruse the documents filed alongwith the police report to assess as to whether any prima facie case is made out and to take a decision accordingly. Learned counsel adds that in the instant case, the learned Magistrate has relied not only on the FIR, but also on the statement of the victim girl recorded under Section 161 Cr.P.C. by the Investigating Officer as well as her statement recorded under Section 164 Cr.P.C. by the Judicial Magistrate and from perusal of the same, the Magistrate has found prima facie case for the offences against the petitioner as well as against the co-accused person, named in the FIR. 9. I have heard learned counsel for the parties and also gone through the materials on record. As it appears a case was instituted on the basis of the FIR lodged by the victim girl who has categorically named the petitioner and other co-accused and has made specific allegations against both of them to the effect that they had forcibly entered her house and had kidnapped her. The same statement was repeated by her when recorded by the Magistrate under Section 164 Cr.P.C. From the facts as alleged, it appears that the victim girl is the only material witness who, under the facts and circumstances, could have given a clear picture of what has transpired with her. 10. From the perusal of the case diary, I find that there is no further-statement of the victim girl recorded by the Investigating Officer to contradict the earlier statement given by her. 11. Under the provisions of Section 190 Cr.P.C., the Magistrate is vested with the powers to take cognizance of offence upon a police report of such facts that such offence has been committed. The Magistrate is therefore not bound to accept the opinion of the Investigating Officer without verifying the facts from the materials collected by the Investigating Officer in course of investigation. The Magistrate is therefore not bound to accept the opinion of the Investigating Officer without verifying the facts from the materials collected by the Investigating Officer in course of investigation. The Magistrate has certa1nly the power to take his decision independently on the facts of the case and to assess as to whether any offence has been committed and if so, to take cognizance of such offence. 12. In the instant case, as it appears from the impugned order of cognizance, the learned Chief Judicial Magistrate has gone through the contents of the case diary including the statements of the victim girl recorded in course of investigation not only by the Investigating Officer but also by the Judicial. Magistrate under Section 164 Cr.P.C. Such statements have not been contradicted by any subsequent statement made if any, by the prosecutrix . I do not find any illegality or infirmity in the impugned order of the court below. The judgment in the case of Md. Munif @ Sardar Manifuddin Quraishi @ Munif Kasai (supra), referred to by the learned counsel, would not apply to the facts of the present case as it appears that in the case of Md. Munif, the case was registered on the basis of an FIR against as many as 13 persons but on the conclusion of the investigation and on the basis of evidence collected, the Investigating Officer submitted charge-sheet against only nine of the accused persons. The Magistrate, while taking cognizance of the offence as recommended by the Investigating Officer, against the nine charge-sheeted persons, had also proceeded to take cognizance against other four who had not been sent up for trial. The Magistrate, while taking cognizance of the offence as recommended by the Investigating Officer, against the nine charge-sheeted persons, had also proceeded to take cognizance against other four who had not been sent up for trial. It is in this context that relying upon a judgment of the Supreme Court in the case of Kishori Singh & Others vs. State of Bihar & Another, 2006(1) SCC (Crj.) 275, this Court had held that the "Magistrate could not have issued process against those persons, who may have been named in FIR as accused persons, but not charge-sheeted in the charge-sheet that was filed by the police under Section 173 Cr.P.C. Those persons, against whom charge-sheet has not been filed they can be arrayed as "accused persons" in exercise of the powers under Section 319 Cr.P.C. when some evidence or materials are brought on record in course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed chargesheet". 13. In the present case, the police report does not recommend the trial of any of the accused persons despite the statement and evidence of the prosecutrix. The court below would therefore be called upon to take its decision upon cognizance of the offence and only after taking cognizance could it decide as to which of the accused persons, should summons be issued directing them to face trial. 14. In the light of the facts and circumstances and the discussions made, I do not find any merit in this application. Accordingly the same is hereby dismissed.