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2012 DIGILAW 602 (PAT)

Suresh Rai v. State of Bihar

2012-04-11

ASHWANI KUMAR SINGH, NAVANITI PRASAD SINGH

body2012
Order (Per: Hon'ble Mr. Justice Navaniti Pd. Singh) 1. This petition in the nature of habeas corpus has been filed for release of the petitioner claiming his detention to be illegal being in contravention of Section 309(2) of the Code of Criminal Procedure, 1973 in Ahiyapur P.S. Case No. 335 of 2009 dated 29.2.2009 instituted under Section 364A of the Indian Penal Code against the unknown accused persons. In course of investigation, the petitioner was apprehended and remanded in the case on 2.4.2011. The police on completion of investigation submitted charge-sheet against the petitioner on 29.6.2011. 2. It is submitted that in spite of charge-sheet being submitted, the learned Chief Judicial Magistrate, Muzaffarpur is remanding the petitioner from one date to another without taking cognizance of the offence. A copy of order sheet of the court below has been filed in support of the contention to show that the learned Chief Judicial Magistrate, Muzaffarpur, has been adjourning the matter one date to another ''for hearing on cognizance." Thus, it is submitted that since investigation is over, the petitioner cannot be remanded to judicial custody in terms a Section 167 Cr.P.C. and since no cognizance has been taken, it cannot be deemed that the Magistrate was holding inquiry in terms of Section 209 of the Code of Criminal Procedure for the purposes of supplying police papers and other documents in terms of Section 207 of the Code of Criminal Procedure to the accused prior to committing him to the court of sessions for trial. 3. The further submission is that the Magistrate has no authority to remand the petitioner in custody in view of Section 309(2) of the Code which makes the taking of cognizance condition precedent for exercise of power of remand in a pending inquiry or trial. Finding substance in the application, we sought an explanation from the C.J.M., Muzaffarpur, by order dated 27.3.2012. The explanation has been received. It has been stated that the lower court records of the case was called by the learned Sessions Judge, Muzaffarpur in B.P. No. 613 of 2011 and the same was transmitted to his court on 8.6.2011 and a shadow record was kept in his office. When the charge-sheet was submitted on 29.6.2011 by the police in his court, the original record was not available. The original record was returned to his office on 10.8.2011. When the charge-sheet was submitted on 29.6.2011 by the police in his court, the original record was not available. The original record was returned to his office on 10.8.2011. On 14.10.2011 and 19.10.2011 due to excessive workload, the case was adjourned for hearing on the point of cognizance. On the next two dates, i.e., 23.12.2011 and 30.1.2012, he was on leave and, as such, cognizance could not be taken. However, cognizance of the offence has already been taken on 28.3.2012. 4. The explanation submitted by the Chief Judicial Magistrate, Muzaffarpur, is a lame excuse having no legal justification. The learned C.J.M. states that a shadow file was already there in his court while transmitting the original file to the learned Sessions Judge in a connected bail matter. 5. In terms of Section 173(2) Cr.P.C., the moment investigation in a cognizable case is completed, the police forwards to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. 6. In terms of Section 173(5) Cr.P.C., when such report is in respect of a case to which Section 170 applies, the police officer has to forward the Magistrate alongwith the report-(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to Magistrate during investigation, (b) the statements recorded under Section 161 Cr.P.C. of all the persons whom the prosecution proposes to examine as its witnesses. The police report is a conclusion that an investigating officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent court to take cognizance thereupon under Section 190(i)(b) of the Code and to proceed with the case for trial. 7. We see no reason as to why the C.J.M., Muzaffarpur failed to apply his mind to the police report submitted after completion of investigation together with all relevant documents when the shadow file was already available in his record. 7. We see no reason as to why the C.J.M., Muzaffarpur failed to apply his mind to the police report submitted after completion of investigation together with all relevant documents when the shadow file was already available in his record. If, in any case, he thought he was handicapped in applying his mind in absence of original record which was transmitted to the Court of Sessions Judge, Muzaffarpur, he could have immediately on receipt of police report written to the office of Sessions Judge, requesting for the original record for the needful and after perusing the same could have transmitted it back to the court of sessions, which exercise in our opinion could have been done within few hours. We find that the C.J.M., Muzaffarpur did not take any action in this regard. To the contrary, he adjourned the case from one date to another for hearing on the point of cognizance. 8. We fail to understand as to who was to be heard on the point of cognizance. It is well-settled that an accused has no locus standi to be heard before cognizance is taken. Of course, if the police submits a final report and an accused is not sent up for trial, the informant has a right to be heard on the point of cognizance. But, when the police submits charge-sheet and the accused persons are sent up, no party has a right to be heard. The court competent to take cognizance of the offence has to independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit and exercise his power under Section 190(i)(b) of the Code of Criminal Procedure. 9. It is further unfortunate that admittedly the original record as per explanation submitted by the C.J.M., Muzaffarpur was received back to his court on 10.8.2011 even, on that date, he did not apply his mind to the facts of the case. In the most casual manner he kept. on adjourning the case and his explanation takes a lame excuse that the case was adjourned on 14.10.2011 and 19.10.2011 as he could not take up the matter due to excessive workload. 10. He further explains that on the next two dates, i.e., on 23.12.2011 and 31.1.2012 cognizance could not be taken as he was on leave. on adjourning the case and his explanation takes a lame excuse that the case was adjourned on 14.10.2011 and 19.10.2011 as he could not take up the matter due to excessive workload. 10. He further explains that on the next two dates, i.e., on 23.12.2011 and 31.1.2012 cognizance could not be taken as he was on leave. Thus, what emerges is that though, the charge-sheet alongwith the relevant documents and statement of witnesses recorded in course of investigation was received on 29.6.2011 in the Court of C.J.M., Muzaffarpur, he failed to apply his mind for about nine months on the police report as cognizance was taken on 28.3.2012 only after an explanation was sought for by this Court from him by order dated 27.3.2012 in this regard. 11. As pointed out above, we fail to understand who was to be heard on the point of cognizance and why the case was being adjourned from one date to another for about nine months by the C.J.M., Muzaffarpur after receipt of the charge-sheet in the case. Since, no party is required to be heard on the point of cognizance, if charge-sheet is submitted by the police and the moment the police submits charge-sheet the Magistrate must apply his mind to the facts of the case. No law requires that it has to be heard on the dates fixed by the court. The conduct of the learned C.J.M., Muzaffarpur is unfortunate. Regrettably, the Magistrate, who is supposed to know the law, took this an opportunity to continuously adjourn the matter for hearing on the point of cognizance. We fail to see for whose benefit and for what purpose the learned Magistrate proceeded. He had no option in the matter, either he would have accepted the charge-sheet and taken cognizance of the offence or he would have differed with the police report and refused to proceed in the matter. What we find is something that is not known to law. The only beneficiary of this was the accused who got an opportunity to seek his release on the ground that his detention was illegal. What we find is something that is not known to law. The only beneficiary of this was the accused who got an opportunity to seek his release on the ground that his detention was illegal. However, as the learned Magistrate has already taken cognizance of the offence by order dated 28.3.2012, it could be deemed that the proceedings before the Magistrate since the submission of police report under Section 170 Cr.P.C. and till the order of commitment is made under Section 209 Cr.P.C. could be an inquiry and if it is an inquiry, during the period, the inquiry is completed, Section 309(2) would enable the Magistrate to remand the accused to the custody. 12. It is well-settled that the legality or otherwise of the detention has to be considered with reference to the date when the application is being heard. It cannot be said that as on date the petitioner is illegally detained. 13. Thus, the writ petitioner has no merit for consideration and is, accordingly, dismissed. 14. Let a copy of this order be sent to the Bihar Judicial Academy for guidance.