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2012 DIGILAW 584 (PAT)

Kapildeo Yadav v. State of Bihar

2012-04-06

ADITYA KUMAR TRIVEDI

body2012
ORDER Petitioner/informant has challenged order dated 20.02.2010 passed by Additional District and Sessions Judge, Sheikhpura, Munger passed in Criminal Revision No. 97/2009/11/2009 whereby and whereunder the learned Revisional Court set aside order of cognizance and summoning of non sent up accused, Devendra Yadav and Kalendra Yadav by the learned Chief Judicial Magistrate, Sheikhpura vide order dated 19.03.2009 passed in connection with Ariari P.S. Case No. 150/2008, G.R. No.1073/2008. 2. The brief fact of the case, for the present purpose is narrated below:- Kapildeo Yadav gave his fardbeyan on 27.11.2008 at about 4:45 P.M. alleging inter alia that on the same day at about 10:00 A.M. while he was going to his field along with his brother Kailash Yadav, Maheshwar Yadav, Dular Yadav near the house of Rambriksh Yadav his co-villager Misri Yadav, Bhushan Yadav, Devendra Yadav, Kalendra Yadav, Indradeo Yadav, Dinesh Yadav and Shugul Yadav, armed variously apprehended them, abused and assaulted. Indradeo Yadav gave Bhala blow, Bhushan Yadav Garasa blow, Misri Yadav rod, Devendra Yadav gave axe blow, Shugul Yadav and others remaining assaulted with lathi. His brother Kailash Yadav had sustained grievous injury who during course of investigation died. The investigation commenced and concluded by way of submission of charge-sheet wherein accused Devendra and Kalendra were not sent up for trial but the learned Chief Judicial Magistrate who, after going through the case diary, differed from the opinion of the investigating authority and took cognizance and summoned all the accused including Devendra and Kalendra, who were not sent up for trial. Against the aforesaid order, Kalendra Yadav and others filed Cr.Revision No. 97/2009/11/2009 and the same was allowed setting aside the order of the learned Chief Judicial Magistrate to the extent of Kalendra and Devendra. 3. It has been submitted on behalf of the petitioner that order passed by the Additional Sessions Judge happens to be bad in law as well as on facts, hence, is fit to be set aside. 4. 3. It has been submitted on behalf of the petitioner that order passed by the Additional Sessions Judge happens to be bad in law as well as on facts, hence, is fit to be set aside. 4. It has further been submitted that the learned Chief Judicial Magistrate was well within his domain to differ from the finding of the investigating officer much less, so far this particular case is concerned there happens to be specific disclosure by the witnesses whose statements are recorded in the case diary and those were taken into consideration by the learned Chief Judicial Magistrate and which were found sufficient to differ from the finding of the I.O. so far accused Devendra Yadav and Kalendra Yadav are concerned. 5. Also submitted that the learned Revisional Court as is evident from para-5 of the order has taken note of those paragraphs and only two witnesses recorded under para-43, Rambriksh Bind and under para-47, Ajay Yadav who did not disclose the names of both the two accused along with finding of the supervision note recorded under paragraphs 163 and 134 of the case diary, differed therefrom which was not at all permissible and further would not have made the order of the learned Chief Judicial Magistrate ineffective. 6. The aforesaid materials was also not sufficient to undo the finding of the learned Chief Judicial Magistrate whatever been done by the Revisional Court. So submitted that on factual position as well as legal position, the order impugned is non sustainable. 7. It has further been submitted that future summoning of proposed accused attracting Section 319 of the Cr.P.C. was not at all a sound principle of law and therefore relying upon the decisions filed on behalf of the proposed accused only while rejecting the citations made on behalf of the petitioner for the purpose of setting aside the order of the learned Chief Judicial Magistrate to that extent is not correct. So the cumulative effect happens to be that the order impugned is fit to be set aside. 8. On the other hand, the learned counsel for O.P. No.2 and 3 has submitted that order of the Revisional Court is fit to be confirmed because it is based upon facts as well as on law. So the cumulative effect happens to be that the order impugned is fit to be set aside. 8. On the other hand, the learned counsel for O.P. No.2 and 3 has submitted that order of the Revisional Court is fit to be confirmed because it is based upon facts as well as on law. Then submitted when there happens to be presence of statement of witness which makes the presence of accused doubtful at the place of occurrence, during course of occurrence then in that event the learned Chief Judicial Magistrate should not have summoned the accused presence (O.Ps.). The purpose for creating the doubt is not to be placed in bulk rather statement of single witness is sufficient if it casts doubt in the mind of the court. So far law is concerned, that had properly been dealt with by the Revisional Court and as such the order impugned is fit to be confirmed. 9. While, the learned Additional P.P. fairly submitted that learned Chief Judicial Magistrate was not at all bound to accept the finding of the investigating authority in toto. Also submitted that for the purpose of summoning of accused prima facie case has to be traced out and so far present case is concerned, the learned Revisional Court also incorporated the paragraphs wherefrom presence of O.Ps during course of commission of crime at the place of occurrence having active involvement is apparent. So the order impugned is fit to be rescind. 10. From the order of the Revisional Court, it is evident that it had relied upon solely on Kishori Singh’s case reported in 2004(13) SCC 11 . In a decision reported in 2010(9) SCC 479 the matter has been dealt with elaborately by the Hon’ble Apex Court taking into account all the relevant decisions including the Kishori Singh’s case and then at para-19 concluded:- “The law is well settled that even if the investigating authority is of the view that no case has been made out against an accused, the Magistrate can apply his mind independently to the materials contained in police report and take cognizance thereupon in exercise of his powers under Section 190(1)(b) CrPC. That is precisely what has happened in the present case.” 11. That is precisely what has happened in the present case.” 11. In 2011(6) SCC 102 at para-16 it has been held:- “It will also be clear from Section 190(b) CrPC that it is the Magistrate, who has the power to take cognizance of any offence upon a “police report” of such facts which constitute of offence. Thus, when a police report is forwarded to the Magistrate either under sub-section 2 or under sub-section 8 of Section 173 CrPC, it is for the Magistrate to apply his mind to the police report and take a view whether to take cognizance of an offence or not to take cognizance of offence against an accused person.” 12. In 2012 (1) PLJR 407 (SC), the matter of cognizance was taken into consideration and the same has been culled down under para-21 and 22 which are as follows:- 21. At the stage of taking of cognizance of offence, the Court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record. 22. The principles relating to taking of cognizance in a criminal matter has been very lucidly explained by this Court in S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. and Ors.- (2008)2 SCC 492 , the relevant observations are set out:- “19. The expression “cognizance” has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of” and when used with reference to a court or a Judge, it connotes” to take notice of judicially”. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.” 20. “Taking cognizance” does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.” (para nos. 19 and 20 at page 499 of the report). 13. Not only this, the ways for taking of cognizance has further been suggested in the aforesaid judgment under paragraph-26:- “Reference in this connection may be made to a three Judge Bench decision of this Court in the case of M/s India Carat Private Ltd. Vs. State of Karnataka & Anr., (1989)2 SCC 132 . Explaining the relevant principles in paragraph 16, Justice Natarajan, speaking for the unanimous three Judge Bench, explained the position so succinctly that we would rather quote the observation: as under:- “The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1) (b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer; and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused.…” 14. The Magistrate can ignore the conclusion arrived at by the investigating officer; and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused.…” 14. Now, in the background of aforesaid legal settled proposition of law when the order impugned has been gone through, it is evident that from para-5 of the Revisional court’s order itself it is evident that save and except two witnesses whose statement stood recorded under para-43 and 47 of the case diary, others had consistently shown presence of O.P. No.2 and 3 during course of commission of crime so actively involved. With regard to appreciation of supervision note less said is better as times without number the Hon’ble Court has forewarn in accepting the same as it does not happen to be the part of the case diary. 15. Consequent thereupon, the order passed by the Revisional court, Additional Sessions Judge, Sheikhpura, Munger in Cr. Revision No. 97/2009/11/2009 is hereby set aside and the order dated 19.03.2009 passed in connection with Ariari P.S. Case No. 150/2008, G.R. No.1073/2008 by the learned Chief Judicial Magistrate, Sheikhpura is restored. 16. Thus, petition is allowed.