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2010 DIGILAW 756 (JHR)

Hari Shankar Pandey v. State of Jharkhand

2010-07-26

D.G.R.PATNAIK

body2010
Order Heard the learned counsel for the parties. 2. The petitioner, in this application filed under Section 482 of the Cr.P.C., has prayed for quashing the order of cognizance dated 11.7.2006, passed by the Chief Judicial Magistrate, Garhwa in G.R. Case No. 923 of 2002, arising out of Ranka P.S. Case No. 88 of 2002, whereby after taking cognizance for the offences under Sections 302 and 201/34 of the I.P.C., the petitioner has been summoned to face trial. 3. The short account of events, relevant for the disposal of this application are as follows:- A First Information Report was lodged at the• Police Station on 29.11.2002, which was registered for the offences under Section 364 of the I.P.C. on the allegation that the informant's son Rajesh was abducted by some unknown persons. The F.I.R. was registered against unknown though one Hanumant Babu was named in the F.I.R. on the basis of the statement that there was a hot talk between the victim and the said Hanumant Babu in the night of 28.11.2002. Three more persons, namely Chappu Ram, Anwar and the present petitioner were also named in the F.I.R. stating that they had visited the house of the informant in the night of 28.11.2002 at about 9:30 p.m., searching for the informant's son. In course of investigation, the dead body of the deceased was found and the post mortem report conducted on the dead body, indicated that the deceased had suffered death by poisioning. A suicidal note was also recovered from the place, where the dead body was found. After concluding the investigation, the Police submitted final report declaring that there was insufficient evidence against the accused persons, namely Chhapu Ram @ Ravi, Anwarul Haque @ Anwar and Hari Shankar Pandey, namely, the present petitioner. The informant thereafter, filed a Protest Petition, alleging that the Investigating Officer has misdirected the investigation, although there was ample evidence in the case diary against the accused persons. Upon receipt of the Protest Petition, the Chief Judicial Magistrate perused the case diary and by drawing the inference that there was circumstantial evidence which denotes that the deceased was intentionally administered poision by the accused persons and disbelieving the suicidal note of the deceased and treating the purported circumstantial evidence as prima facie material, proceeded to take cognizance for the offences under. Sections 302 and 201/34 of the I.P.C. against altogether six accused persons, including the present petitioner. 4. Assailing the impugned order of cognizance and the continuation of the criminal proceedings against the petitioner learned counsel arguing on behalf of the petitioner, submits that the learned court below has committed a grave error and has acted contrary to the provisions of law, while taking cognizance of the offences against the petitioner only on the basis of conjectures and surmises and on suspicion, even though, the petitioner is neither named in the F.I.R. nor has the entire investigation conducted by the Police, disclosed any incriminating evidence whatsoever to connect the petitioner with the alleged murder of the deceased and neither has the Police recommended for the trial of the petitioner for any offence whatsoever. Learned counsel argues further that the offences being sessions triable, the learned Magistrate could not have proceeded to take cognizance of the offences without examining the complainant on the basis of the Protest Petition, even if such a Protest Petition was treated as a complaint. To buttress his arguments, learned counsel refers to the judgment of the Supreme Court in the case of Kishori Singh & Others vs. The State of Bihar & Another reported in 2000(4) Crimes 158 (SC) and to another judgment of this Court, passed in the case of Md. Munif @ Sardar Manifuddin Quraishi @ Munif Kasai vs. The State of Jharkhand in Cr. M.P. No. 886 of 2008*. 5. Learned counsel for the State on the other hand would submit arguments in support of the impugned order refuting the entire grounds advanced by the petitioner and declaring that it was within the competence of the Magistrate to differ from the recommendations contained in the Police Report and to take cognizance of the offences, if prima facie material is available from the evidences collected in course of investigation. 6. From the rival submissions, the points for determination are:- (i) Whether after receipt of the final report and Protest Petition, any case triable exclusively by the Court of Sessions, a Magistrate can issue processes without following the procedure provided under Sections 200 and 202 of the Cr.P.C.? (ii) Whether in the facts of the present case and even on the basis of the evidences collected in course of investigation and recorded in the case diary, there is sufficient grounds for proceeding against the accused? 7. (ii) Whether in the facts of the present case and even on the basis of the evidences collected in course of investigation and recorded in the case diary, there is sufficient grounds for proceeding against the accused? 7. Section 190 of the Code of Criminal Procedure in Chapter-XIV vests power in the Magistrate to take cognizance of the offences and it specifies the conditions requisite for initiation of proceedings. For better appreciation, the provisions of Section 190 of the Code of Criminal Procedure is quoted as under: "190. Cognizance of offences by Magistrate.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offences has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try." 8. It is manifest from a bare reading of the above provision that this Section is not subject to any other provision. Rather it lays down an independent procedure. Section 200 of the Cr.P.C. as contained in Chapter-XV of the Code, lays• down the procedure which is required to be adopted by the Magistrate upon receiving a complaint whereas the provisions of Section 190 is couched in such a comprehensive language in which it indicates the intention of the legislature that Section 190 is not subject to the provisions of Sections 200 and 202 of the Code. Under Section 190, it is open to the Magistrate to apply his mind to the facts disclosed and to determine judicially as to whether cognizance of any offence should be taken and if he is satisfied that the Protest Petition filed by the complainant contains sufficient material to assume that prima facie offences disclosed, then to issue summons to the accused persons to face trial. The provisions of Section 190 is subject only to the provisions of Chapter-XIV and it does not depend upon the procedure laid down under Sections 200 and 202 of the Code. The provisions of Section 190 is subject only to the provisions of Chapter-XIV and it does not depend upon the procedure laid down under Sections 200 and 202 of the Code. Sub-clause (b) of Clause (1) of Section 190 of the Code lays down that the Magistrate may take cognizance of any offence upon a Police Report of such facts relating to commission of some offence. The purpose of a Police Report under Section 173(2) of the Code of Criminal Procedure is primarily to enable the Magistrate to satisfy himself, whether on the basis of the Report and the materials referred therein, a case for cognizance is made out or not. The Magistrate is not bound by the opinion of the Investigating Officer and he is independent to exercise his discretion, irrespective of the view expressed by the Police in their Report and decide whether an offence has been made out or not. This view finds support from the observations of the Supreme Court in the context of the powers of the Magistrate under Section 190(1)(b) of the Code of Criminal Procedure as recorded in its judgment in the case of Fakhruddin Ahmad vs. State of Uttaranchal and Another reported in (2008)17 SCC 157. 9. For the above reasons, the contention of the learned counsel for the petitioner, finding fault with the impugned order of cognizance on the ground that it has been passed without examining the complainant and the complainant's witnesses in accordance with the provisions of Sections 200 and 202 of the Cr.P.C., cannot be accepted. 10. The judgment cited by the learned counsel for the petitioner both in the case of Kishori Singh & Others (supra) and in the case of Md. Munif @ Sardar Manifuddin Quraishi @ Munif Kasai (supra) would not apply to the facts of the present case. As may be observed, in both the aforesaid cases, charge-sheet was submitted by the Police recommending trial against some of the accused persons, named in the F.I.R. and not recommending the trial of other accused persons. Munif @ Sardar Manifuddin Quraishi @ Munif Kasai (supra) would not apply to the facts of the present case. As may be observed, in both the aforesaid cases, charge-sheet was submitted by the Police recommending trial against some of the accused persons, named in the F.I.R. and not recommending the trial of other accused persons. It was under such circumstances that the Courts have held in both the aforesaid cases that taking cognizance of the offence against persons not charge-sheeted, is illegal and that such persons could be arrayed as accused persons only in exercise of the powers under Section 319 of the Cr.P.C. In the present case, the F.I.R. was registered against unknown offenders and though the name of the petitioner and a few others was mentioned in the Police Report but no charge-sheet was submitted recommending the trial for the offences against any of the accused persons. Under such circumstances, the Magistrate cannot be faulted for not accepting the opinion of the Police Officer and proceeding to exercise his discretion in exercise of the powers under Section 190(1)(b) of the Cr.P.C. 11. As regards the second ground, even though the Magistrate may not be bound by the opinion of the Investigating Officer and is empowered to exercise his discretion irrespective of the view expressed by the Police in the Report, the point of relevance is the Magistrate's use of the discretion to decide whether an offence has been made out or not. While doing so, the Magistrate has also to decide as to whether in the light of the allegations made in the first information report or in the complaint and or in the Police Report even if they are taken at their face value and accepted in their entirety, the materials prima facie make out a case against the accused and whether there is sufficient ground for proceeding against the accused. 12. In the instant case, the petitioner is not named in the F.I.R. It is in the case diary that the name of the petitioner transpires with a statement that he had taken money from the deceased. This appears to be the only statement made in respect of the present petitioner. 12. In the instant case, the petitioner is not named in the F.I.R. It is in the case diary that the name of the petitioner transpires with a statement that he had taken money from the deceased. This appears to be the only statement made in respect of the present petitioner. There is no evidence from any source to indicate either that the petitioner was last seen with the deceased or that the petitioner had sent any of the other accused persons to fetch the deceased from his house or that they had even referred to the name of the petitioner at the time when they had visited the house of the informant in search of the deceased. Even if it is stated that the petitioner had taken money from the deceased, it is not indicated as to whether such money was taken just prior to the alleged murder of the deceased or on any previous occasion nor is there any such evidence to suggest that there was previous enmity or ill will between the deceased and the petitioner. Even if the isolated statement that the petitioner had taken money from the deceased is accepted, it hardly constitutes any incriminating evidence even Circumstantial in nature, to link the petitioner with the murder of the .deceased for the purposes of securing his conviction for the offence of murder. 13. From perusal of the impugned order of the learned court below, it appears that though the Magistrate may have found sufficient material to take cognizance of the offence of murder but the Magistrate had not applied his judicial mind to reach at the conclusion that there is sufficient ground for proceeding against the petitioner. 14. It is well settled that the inherent powers possessed by the High Court under Section 482 of the Cr.P.C. are to be exercised very carefully and with great caution so that a legitimate prosecution is not stifled. However, where the High Court is convinced that the allegations made in the first information report or the complaint or the materials available in the Police Report, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, the powers of the High Court under Section 482 of the Cr.P.C. should be exercised. 15. 15. In the instant case after going through the entire materials available on record, I find that there are no sufficient grounds for proceeding against the accused petitioner and therefore, compelling him to face the rigors of a protracted trial for the alleged offences, would be an abuse of the process of the Court. 16. In the light of the facts and circumstances, the impugned order whereby the petitioner has been summoned to face trial and the entire criminal proceeding as pending against the petitioner, Hari Shankar Pandey, following the order of cognizance vide G.R. Case No. 923 of 2002 arising out of Ranka P .S. Case No. 88 of 2002, is hereby quashed.