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Jharkhand High Court · body

2014 DIGILAW 199 (JHR)

Bindeshwari Das v. State of Jharkhand through CBI

2014-01-31

P.P.BHATT

body2014
Order The petitioners, by way of filing the present criminal writ petition under Article 226 of the Constitution of India, have prayed for quashing the order dated 9.2.2009 passed by the learned Sub-Divisional Judicial Magistrate-cum-Special Judicial Magistrate, CBI, Dhanbad in RC Case No. 4(S)/06 and RC Case no. 5(S)/06 (subsequently amalgamated vide order dated 9.2.2009 as RC Case no. 4(S)/06) whereby, the learned court below took the cognizance under Sections 147, 149, 323, 304 and 120B of the Indian Penal Code against the petitioners. 2. The criminal revision petition is preferred by the informant/complainant being aggrieved and dissatisfied by order dated 9.2.2009 passed by the learned Sub-Divisional Judicial Magistrate-cum-Special Judicial Magistrate, CBI, Dhanbad in RC Case No. 4(S)/06 and RC Case no. 5(S)/06 (subsequently amalgamated vide order dated 9.2.2009 as RC Case no. 4(S)/06), whereby, the learned court below did not take cognizance under Section 302 IPC though, prima facie, ingredients of the said Section were available from the materials on record and took cognizance under Sections 147, 149, 323, 304 and 120-B of the IPC. 3. The learned counsel for the parities in both the proceedings have jointly requested that since both the proceedings are arising out of the common order dated 9.2.2009 passed by the learned Sub-Divisional Judicial Magistrate-cum-Special Judicial Magistrate, CBI, Dhanbad and, therefore, both the matters may be heard together and disposed of. 4. Considering the above request, made by the learned counsel for the parties appearing in both the above referred proceedings, the Writ Petition as well as Cr. Revision Petition are taken up for hearing. 5. Heard the learned counsel for the parties and perused the materials, placed on record. 6. Learned counsel for the petitioner by referring the impugned order submitted that the learned court below has not properly considered the facts and circumstances involved in this case and has taken cognizance against the petitioners without proper appreciation of the materials, available on record. It has been further submitted that the petitioners are the Police Officials and on account of this case they will have to face undue harassment and, therefore, the impugned order may be quashed by this Court, as there is no material to attract even prima facie ingredient of offence punishable under Sections 147, 149, 323, 304 and 120B of the Indian Penal Code against the petitioners in this case. 7. 7. The learned counsel for the CBI submitted that after the necessary investigation, a report was submitted before the learned court below. Learned counsel for the CBI tried to justify the report submitted by the CBI. 8. The learned counsel appearing for the informant, by referring the observation made in the impugned order, passed by the learned Judicial Magistrate, submitted that the learned court below, after careful consideration of the materials available on record, took the cognizance against the petitioners for the offence punishable under Sections 147, 149, 323, 304 and 120B of the Indian Penal Code. Learned counsel for the informant further submitted that a revision application is preferred against the said order, as the learned Judicial Magistrate has failed to appreciate that though prima facie ingredients of Section 302 of the Indian Penal Code exist in the material available on record but the learned court did not take cognizance under Section 302 of the Indian Penal Code. It is further submitted that the learned court below ought to have taken cognizance for the offence punishable under Section 302 of the IPC against the petitioners. 9. Considering the aforesaid rival submissions advanced by the learned counsel for the parties and from perusal of the impugned order, it appears that the learned court below, after careful consideration of the facts and circumstances of the case and the materials available on record, passed an order taking cognizance against the petitioners for offence punishable under Sections 147, 149, 323, 304 and 120B of the Indian Penal Code. It also appears that the observations made by the learned court below are based on materials available on record and, therefore, taking into consideration the scope of Section 482 Cr.P.C, there is no substance in the instant petition. The Hon'ble Apex Court has given broad guidelines in Para 102 of its judgment reported in case of State of Haryana Vs. Bhajan Lal [1992 Supp (1) SCC 335], which are as under; “102. The Hon'ble Apex Court has given broad guidelines in Para 102 of its judgment reported in case of State of Haryana Vs. Bhajan Lal [1992 Supp (1) SCC 335], which are as under; “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: 1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 10. In view of the above referred decision of the Hon'ble Apex Court, the case of the petitioner does not satisfy the criteria/parameters broadly described by the Hon'ble Apex Court for exercise of powers under Section 482 of the Code. Hence the writ petition filed by the petitioners deserves to be rejected. 11. Likewise, so far as Revision application filed by the complainant, it appears that there is no substance in the arguments advanced by the learned counsel for the complainant, as the learned court below after careful consideration of the materials on record rightly and properly took cognizance of the offence punishable under Sections 147, 149, 323, 304 and 120-B of the IPC and in accordance with law. Therefore, the revision application filed by the complaint also deserves to be rejected. 12. Learned counsel for the petitioners appearing in W.P. (Cr.) No. 287 of 2009 submitted that a liberty may be given to the petitioners to raise all the points , which have been raised before this Court as well as other points available to them at the time of hearing of the discharge petition that may be preferred by the petitioners. 13. Liberty, as prayed for, is granted. 14. With the aforesaid observations and directions, writ petition being WP(Cr.) No. 287/2009 along with criminal revision being Cr. Rev. No. 500/2009 stands dismissed. 15. Consequently, interim order passed on 1.9.2009 stands vacated. Revision dismissed.