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2012 DIGILAW 623 (PAT)

Dipu Kumar v. State of Bihar

2012-04-16

ADITYA KUMAR TRIVEDI

body2012
ORDER Petitioners have challenged order dated 15.04.2010 passed by SDJM, Masaurhi in connection with Masaurhi P.S. Case No. 51/2010 whereby and whereunder petitioners have been summoned to face trial for an offence punishable under Sections 341, 323, 324 and 447/34 of the IPC. 2. Gudia Devi filed a written report before O/C, Masaurhi P.S. on 07.02.2010 disclosing therein that on the same date at about 1:30 P.M. while she was sitting over her roof, her neighbour Kiran Devi, her elder daughter Suman Devi, younger daughter, Chunnu Kumari came there and indulged in scuffle on the pretext that as to why she was seeing towards them. During midst thereof her son Dipu Kumar and Laloo Kumar came and joined and further gave knife blow causing injury upon her person. On her alarm, her brother came seeing whom the accused persons began to flee and during said course, Dipu Kumar fell from roof. Laloo Kumar snatched away her chain. 3. On the basis of the aforesaid written report Masaurhi P.S. Case No. 51/2010 was registered under Section 341, 323, 379, 324/34 of the IPC and investigation commenced thereupon and after concluding the same, charge-sheet was submitted only against Dipu Kumar and Laloo Kumar under Sections 341, 323, 324, 447/34 of the IPC while petitioners Kiran Devi, Suman Devi and Chunnu Kumari were not sent up for trial. The learned SDJM after going through the case diary summoned all of them, hence arose a cause for filing instant petition. 4. Contentions on behalf of the petitioners are that the order passed by the learned lower court is bad in law as well as on facts hence is fit to be set aside. Further submitted that the instant case has purposely been filed by Gudia Devi to meet out the allegation as leveled by his father on account of assault as well as throwing of Dipu Kumar from roof with an intention to kill for which Masaurhi P.S. Case No. 50/2010 was registered under Sections 341, 323, 325/34 of the IPC (Annexure-1). Further submitted that while petitioner Dipu Kumar was under going treatment at Patna Medical College Hospital, his statement was recorded on 12.02.2010(Annexure-3). Referring (Annexure-4) injury report of petitioner, Dipu Kumar it has been submitted that all those things prima facie support the case of the petitioners. Further submitted that while petitioner Dipu Kumar was under going treatment at Patna Medical College Hospital, his statement was recorded on 12.02.2010(Annexure-3). Referring (Annexure-4) injury report of petitioner, Dipu Kumar it has been submitted that all those things prima facie support the case of the petitioners. On the other hand, as per injury report Annexure-5, the informant Gudia Devi has sustained single superficial injury being abrasion over the left side at lower abdomen of the size .5CmX.2Cm and the aforesaid injury report coupled with the written report of Masaurhi P.S. Case No. 51/2010, it is crystal clear that the instant case has motivatedly been filed by way of counter blast just to save their skin. Hence, it has been submitted that in the facts and circumstances of the case, the order impugned is fit to be quashed along with the prosecution. 5. On the other hand, learned APP while counter meeting with the submission made on behalf of the petitioners submitted that present stage did not require consideration of defence case. The cognizance taking courts are required only to see whether a prima facie case is visualizing from the materials so submitted under Section 173 of the Cr.P.C by the police and in case, the court comes to a conclusion to the said effect, the said order cannot be interfered with. 6. In a recent decision reported in 2012 (2) SCC 188 the scope of Section 190 of the Cr.P.C. has been taken into consideration along with its propriety to be adjudicated upon by the Superior Courts. For that it is better to quote the relevant paragraphs and i.e. 16, 17, 18, 19 which are as follows:- “16. Section 190 of the Code lays down the conditions which are requisite for the initiation of a criminal proceeding. At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the police in its report and may prima facie find out whether an offence has been made out or not” “17. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the police in its report and may prima facie find out whether an offence has been made out or not” “17. The taking of cognizance means the point in time when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. 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” “18. The principles relating to taking of cognizance in a criminal matter has been very lucidly explained by this Court in Chief Enforcement Officer Vs. Videocon International Ltd. (supra), the relevant observations wherefrom are set out: (SCCp.499, paras 19 & 20)” “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 proceeding in respect of such offence said to have been committed by someone. “20. ‘Taking cognizance’ does not involved 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. 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.” “19. The correctness of the order whereby cognizance of the offence has been taken by the Magistrate, unless it is perverse or based on no material, should be sparingly interfered with. The correctness of the order whereby cognizance of the offence has been taken by the Magistrate, unless it is perverse or based on no material, should be sparingly interfered with. In the instant case, anyone reading the order of the Magistrate taking cognizance, will come to the conclusion that there has been due application of mind by the Magistrate and it is a well-reasoned order. The order of the High Court passed on a criminal revision under Sections 397 and 401 of the Code (not under Section 482) at the instance of Dr. Mrs. Nupur Talwar would also show that there has been a proper application of mind and a detailed speaking order has been passed.” 7. So far process of adjudication is concerned, for that paragraphs-21 and 22 have to be taken into consideration which are as follows:- “21. We feel constrained to observe that at this stage, this Court should exercise utmost restrain and caution before interfering with an order of taking cognizance by the Magistrate, otherwise the holding of a trial will be stalled. The superior courts should maintain this restrain to uphold the rule of law and sustain the faith of the common man in the administration of justice.” “22. Reference in this connection may be made to a three-Judge Bench decision of this Court in India Carat (P) Ltd. Vs. State of Karnataka (supra). Explaining the relevant principles in para 16, Nataranjan, J. speaking for the unanimous three-Judge Bench, explained the position so succinctly that we would rather quote the observation as under: (SCC pp.139-40) “16. The position I, 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 be 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. 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.” These well-settled principles still hold good. Considering these propositions of law, we are of the view that we should not interfere with the concurrent order of the Magistrate which is affirmed by the High Court”. 8. It is needless to say that for any occurrence there happens to be version and counter version and both versions are maintainable and for that reference may have 2009 Cr.L.J 958 as well as 2010 AIR SCW 3683. 9. After scrutinizing the order impugned on the score of principle laid down by the Hon’ble Apex Court as referred above, I do not see instant petition maintainable. 10. As such, the petition is rejected. ?