Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 782 (JHR)

Md. Tajkhan v. State of Jharkhand

2010-08-05

D.G.R.PATNAIK

body2010
Order Heard counsel for the petitioner, counsel for the State and counsel for the opposite party no. 2. 2. The petitioner in this instant petition has prayed for quashing the order of cognizance passed by the learned Chief Judicial Magistrate whereby, after taking cognizance of the offences under Sections 406/409/467/468/109/120B of the Indian Penal Code and Section 7 of the Essential Commodities Act, the learned court below had issued summons directing the petitioner and several other persons to face trial. 3. Counsel for the petitioner assail the impugned order whereby, the petitioner was directed to appear and face trial, on the ground that such order is bad and not in consonance with the procedure of law. Elaborating his arguments, learned counsel explains that though the petitioner and several other persons named in the FIR which was registered on the basis of FIR lodged by the Informant/Police Inspector (Food), but after concluding the investigation, the Investigating Officer had though submitted charge-sheet against some of the accused persons, but did not recommend trial of the petitioner and few others. Learned counsel submits that according to the procedure in law, in the light of the report submitted by the Investigating Officer indicating that there is no sufficient material to proceed against the petitioner, the learned court below could not have issued summons against the petitioner directing him to appear and face trial in the case. To buttress his arguments, learned counsel would refer to and rely upon a judgment of this Court in the case of Md. Munif @ Sardar Manifuddin Quraishi @ Munif Kasai vs. The State of Jharkhand, reported in 2009(2) JLJR 579 and to other judgment in the case of Ghishu Sk. vs. State of Jharkhand as reported in 2006(1) JLJR 186 and also the judgment of the Supreme Court in the case of Kishori Singh & Ors. vs. State of Bihar & Anr. reported in AIR 2000 SC 3725 . 4. Counsel for the State, on the other hand, would argue that under the provisions of Section 190 of the Cr.P.C., the Magistrate is empowered to take cognizance of the offence and also to issue process against the accused persons even by differing with the opinion as expressed by the Investigating Officer in the police report. 4. Counsel for the State, on the other hand, would argue that under the provisions of Section 190 of the Cr.P.C., the Magistrate is empowered to take cognizance of the offence and also to issue process against the accused persons even by differing with the opinion as expressed by the Investigating Officer in the police report. In order to gain support to his arguments, learned counsel refers to a judgment of the Supreme Court in the case of State of Orissa vs. Md. Habibullah Khan as reported in (2003)12 SCC 129. 5. Upon hearing counsel for the parties and also having gone through the materials available on record, the undisputed fact, as it would appear, is that the case was registered on the basis of FIR lodged by the Police Inspector (Food) against several named accused persons for the aforementioned offences. After concluding the trial, the Investigating Officer, while recommending the trial of some of the accused persons, did not recommend such trial against the petitioner and a few other accused persons. The learned court below, however, proceeded to take cognizance of the offence not only against those accused persons, who were recommended for trial, but also against those who were not recommended for trial. 6. On identical facts, while considering the nature and scope of the provisions of Sections 173, 190 and 319 of the Cr.P.C., the Supreme Court has held in the case of Kishori Singh's case (supra), in the context of the order of cognizance of offences against the accused persons not named in charge-sheet, but named in the FIR, that the Magistrate could not have issued process against those per~ sons not charge-sheeted and that they could be arrayed as accused persons in exercise of power under Section 319 or only with. reference made either by Magistrate while passing order of commitment or by Sessions Judge to High Court. This ratio has been relied upon and applied by this Court in several cases, including the case of Narayan Prasad Jha @ Narayan Jha vs. The State of ,Jharkhand, vide Cr. M.P. No. 1296 of 2009 and also in the case of Ghishu Sk. (supra) and Md. Munif @ Sardar Manifuddin Quraishi @ Munif Kasai (supra). This ratio has been relied upon and applied by this Court in several cases, including the case of Narayan Prasad Jha @ Narayan Jha vs. The State of ,Jharkhand, vide Cr. M.P. No. 1296 of 2009 and also in the case of Ghishu Sk. (supra) and Md. Munif @ Sardar Manifuddin Quraishi @ Munif Kasai (supra). It is thus, well settled by a catena of decisions that in cases' where charge-sheet were submitted only against some of the accused persons and not against such persons though named in the FIR, cognizance of the offence even if taken against those persons, have not been recommended for trial by the Investigating Officer, cannot be called for to face trial at the stage of taking cognizance, Such powers would nevertheless be available to the trial court under the provisions of Section 319 of the Code of Criminal Procedure while conducting trial. In the present case, the facts would amply demonstrate that even though the persons accused, are named in the FIR, but while submitting the charge-sheet, the Investigating Officer had recommended trial for the offences against some of the persons only and not against the petitioner and few others. The Magistrate while taking cognizance of the offences, could not have issued summons against the petitioner and to direct him to face trial. There is no dispute regarding the provisions of law that under Section 190 of the Cr.P.C. as well as Section 173(2) of the Cr.P.C., the Magistrate is not bound to accept the opinion expressed by the Investigating Officer in a police report. The Magistrate has the liberty to differ from the opinion of the Investigating Officer and, if satisfied on the materials available in the case diary, to take cognizance of the offences against any accused. However, the application of such law, as has been explained by the Supreme Court in the case of Kishori Singh (supra) can be made only where the Investigating Officer submits final report not recommending trial against any of the accused persons either named or not named in the FIR. It is under such circumstances that the Magistrate may differ with the opinion expressed by the Investigating Officer and pass appropriate orders. It is under such circumstances that the Magistrate may differ with the opinion expressed by the Investigating Officer and pass appropriate orders. On the other hand, in a case where the Investigating Officer submits charge-sheet recommending trial against some of the accused persons and not against the petitioner, the position of law as settled by the Supreme Court in the case of Kishori Singh (supra) is that such other persons, if not recommended for trial in the police report, cannot be summoned and called upon to appear and face trial at the stage of cognizance. 7. In the light of the facts and circumstances and the discussions made above, I find that the ratio decided in the case of Kishori Singh (supra) and in several other cases including the case of Ghishu Sk. (supra) and Md. Munif @ Sardar Manifuddin Quraishi @ Munif Kasai (supra), does squarely apply to the facts of the present case. Accordingly, The impugned order of cognizance dated 3.11.2008 as well as the entire criminal proceeding passed by the court below, vide G.R. No. 2 of 2000 arising out of Chaibasa Sadar P.S. Case No. 30 of 2000 is hereby quashed. This, however, would not prevent the trial court to exercise its discretion under the provisions of Section 319 of the Cr.P.C. in course of trial.