Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 225 (JHR)

Aslam Khan v. State of Jharkhand

2014-02-10

R.R.PRASAD

body2014
Judgment Heard the parties. 2. This application has been filed for quashing of the entire criminal proceeding of Patan P.S. Case No. 74 of 2012 (G.R. No. 1584 of 2012) including the order dated 15.3.2013, whereby and whereunder cognizance of the offences punishable under Sections 341, 323, 427, 325, 307 of Indian Penal Code has been taken against these petitioners as well as three others. 3. It does appear that a case was lodged for commission of the offences under Sections 143, 341, 323, 504, 379, 427, 325, 380/34 of the Indian Penal Code as Patan P.S. Case No. 74 of 2012 against 19 named persons including these petitioners. 4. The matter was taken up for investigation. During investigation the police did find complicity of three named persons as well as one unknown person, whereas no complicity was found on the part of these petitioners. Therefore, the police while submitting charge-sheet against the four persons, these petitioners were not sent up for trial. In spite of that, the court took cognizance of the offences against these petitioners which is quite illegal in view of the decision rendered in a case of Dharam Pal Vs. State of Haryana {2013 (3) East. Cr. C 307 (SC)} =2013 AIR (SC) 3018 and also in view of the decision rendered in a case of Anil Sao and others Vs. State of Jharkhand and another (Cr. M.P. No. 1958 of 2011), which was decided by this Court on 15.01.2014 after taking into account the ratio laid down in a case of Dharam Pal (supra) which is as follows:- “Thus, the position which has emerged out is that if a case is registered for the offence/offences triable by the court of session against two or more accused persons and the charge sheet is submitted against some of them and rest are not sent up for trial, then the Magistrate does have power to take cognizance of the offence only against the person charge sheeted. However, the court is further required to find out whether materials are there or not against the persons not sent up for trial to be taken by the sessions court. If the court does find prima facie material to proceed with the trial, he needs to commit the case to the court of sessions. However, the court is further required to find out whether materials are there or not against the persons not sent up for trial to be taken by the sessions court. If the court does find prima facie material to proceed with the trial, he needs to commit the case to the court of sessions. Similarly, if the charge sheet is submitted against some of the accused persons and the matter is kept open for further investigation against some of the accused persons and the court take cognizance of the offences against the persons charge sheeted, he needs to commit the case to the court of sessions in terms of the provision as contained in Section 209 of the Code of Criminal Procedure. Subsequently, if the charge sheet is submitted against other accused who had not been charge sheeted earlier, some recourse is to be adopted by the court i.e., to find out as to whether there has been material against that person to proceed with the trial and if the Magistrate is satisfied that the materials are there, he simply needs to commit the case to the court of sessions and thereby it is for the sessions court to take cognizance of the offence in terms of the provision as contained in Section 193 of the Code of Criminal Procedure and to proceed with the trial.” 5. It was stated that the court has taken cognizance of the offences against those four persons punishable under Section 307 and other allied Sections of Indian Penal Code and hence, if the case of those persons has been committed to the Court of Sessions, the Magistrate is required to pass order in terms of the ratio laid down in the case of Dharam Pal (supra), which has been indicated above. 6. Accordingly, entire criminal proceeding of Patan P.S. Case No. 74 of 2012 (G.R. No. 1584 of 2012), including the order dated 15.3.2013, taking cognizance against these petitioners, is hereby quashed. 7. However, the matter is remanded back before the court concerned for passing a fresh order in accordance with law, as has been indicated in the cases, referred to above. Ordered accordingly.