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2013 DIGILAW 1801 (ALL)

FAUJDAR BIND v. STATE OF U. P.

2013-07-09

SURENDRA KUMAR

body2013
Surendra Kumar,J.:- Heard Sri S.K. Shukla, learned counsel for the revisionists, Sri Ram Surat Saroj, learned counsel for opposite party no.3 and learned AGA for the State. 2. The accused persons Faujdar Bind, Chiranju Bind, Ranno and Shitla Bind? revisionists herein preferred this revision against the order dated 29.3.2005 passed by the Additional Civil Judge ( Senior Division) II, Court No.8, Bhadohi at Gyanpur, in Case No.155 of 2004 State Vs. Chiranju and others whereby the learned Magistrate relying upon the report submitted by Circle Officer, Gyanpur dated 14.1.2003 took cognizance under Section 3 ( 1) 10 of Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 and committed the case for trial to the Special Judge SC/ST Act fixing 29.4.2005 for trial. 3. The relevant facts for deciding the revision are that the Investigating Officer submitted charge sheet against the accused persons who are revisionists herein under Sections 323, 324, 504, 506 I.P.C. relating to Crime No.281 of 2002, Police Station Unjh, District Sant Ravidas Nagar, Bhadohi. The charge sheet was submitted against the three accused persons on 16.9.2002 and against one accused on 20.9.2002. The learned Magistrate took cognizance on the basis of the charge sheet. Thereafter, Circle Officer/Deputy S.P. Investigating Officer, recorded statement of the complainant Smt. Draupadi who supported the prosecution case in her statement including allegation relating to Section 3 ( 1) 10 SC/ST Act.The Investigating Officer after recording her statement submitted the report on 14.1.2003 to the effect that there is prima facie evidence regarding commission of the offence against the revisionists under Sections 323, 324, 504, 506 I.P.C. and 3 ( 1) 10 SC/ST Act. 4. The Investigating Officer in his report dated 14.1.2003 clearly mentioned that the charge sheet had already been submitted. It was then the learned Magistrate after considering the application filed by the prosecution and going through the affidavit of Smt. Draupadi and subsequent report submitted by the Investigating Officer on 14.1.2003 observed that offence under Section 3 ( 1) 10 SC/ST Act has been committed by the accused revisionists, therefore, he passed the impugned order and committed the case to the Special Judge, SC/ST Act, taking cognizance of the same. Thus the order whereby cognizance under Section 3 ( 1) 10 SC/ST Act was taken by the Magistrate on the basis of the report submitted by the Circle Office/Deputy S.P. is under challenge in the instant revision. 5. Learned counsel for the revisionists has advanced following arguments: ( i) that the learned Magistrate without going through the case diary passed the impugned order; ( ii) that Circle Officer/Deputy S.P. who is Investigating Officer of the case submitted his report on 14.1.2003 under Section 3 ( 1) 10 SC/ST Act without any prescribed proforma. The proforma meant for filing the charge sheet was not adopted by him. ( iii) that the learned Magistrate committed illegality as he did not adopt the procedure provided to proviso to sub-section ( 2) of Section 202 Cr.P.C. and he was bound to record statement of the witnesses in support of the allegation under Section 3 ( 1) 10 of the SC/ST Act.? 6. Per contra learned AGA has submitted that subsequent report/charge sheet submitted by the Investigating Officer on 14.1.2003 cannot be allowed to lose its importance merely because the same was not submitted on the proforma prescribed. The contents of the letter/report filed by Deputy S.P. should be considered in letter and spirit. Regarding proviso to sub-section ( 2) of Section 202 Cr.P.C., learned AGA has submitted that the Magistrate was not bound to advert to that procedure as the same was not applicable in this case. 7. Learned counsel for the revisionists in support of his contention has cited decision of this Court in the case of Pakhandu and others Vs. State of U.P. and another [ 2002 ( 1) JIC 104 ( All) wherein it was held that cognizance taken under Section 190 ( 1) ( b) Cr.P.C. only on the basis of the material collected during investigation and without taking into account any extraneous material, the Magistrate is not bound to follow the procedure laid down for the complainant cases and in such case, proviso to sub-section ( 2) of Section 202 Cr.P.C. shall have no application. 8. Learned counsel for the revisionists has further placed reliance on the decision of this Court in the case of Vimlesh Vs. 8. Learned counsel for the revisionists has further placed reliance on the decision of this Court in the case of Vimlesh Vs. State of U.P. and another [ 2010 ( 4) ADJ 716 ] wherein this Court while exercising powers under Section 482 Cr.P.C. held that no cognizance can be taken under Section 190 ( 1) ( b) Cr.P.C. on the basis of the extraneous material like affidavits. If the material in the case diary is not sufficient for summoning the accused, then procedure laid down in Chapter XV has to be followed. 9. After going through the decisions cited by the learned counsel for the revisionists, I am of the considered view that these decisions have no application to the case in hand. The case in hand is that the Magistrate merely acted upon the report subsequently submitted by the Investigating Officer of the rank of Deputy S.P. in which he recorded statement of the victim lady under Section 161 Cr.P.C. again and submitted the report. Thus the Magistrate acted legally and judicially in passing the impugned order. The Investigating Officer in view of Section 173 ( 8) Cr.P.C. is free to make further investigation on finding any additional evidence orally or documentary, then he may submit subsequent report in the shape of the charge sheet, the same has been done by the Investigating Officer in this case. 10. Since the Investigating Officer concluded that the offence under Section 3 ( 1) 10 of the SC/ST Act was made out, learned Magistrate was left with no option except to take cognizance and to commit the case to the special court meant for trying offence relating to SC/ST Act.? The impugned order is perfectly legal, just and suffer from no illegality or any kind of? perversity The instant criminal revision has no force and is, accordingly, dismissed. 11. All the revisionists who are accused in the trial court are directed to appear before the court concerned on 26.7.2013 failing which the court concerned shall be free to adopt the procedure prescribed under Cr.P.C. for procuring their attendance in the court and after securing their attendance, further legal procedure be adopted subsequent to committal of the case to the Special Judge SC/ST Act. The Special Judge shall try this case on priority basis and decide the same without any delay. 12. The Special Judge shall try this case on priority basis and decide the same without any delay. 12. It is expected that harsh provision would not need to be adopted because learned counsel for the revisionists has assured this Court for? their cooperation in the trial court.