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2015 DIGILAW 188 (JHR)

Jagdish Pandit v. State of Jharkhand

2015-02-06

RONGON MUKHOPADHYAY

body2015
ORDER : Heard the learned counsel for the parties. 2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Pakur (T) P. S. Case No. 229 of 1999 corresponding to G. R. No. 504 of 1999 including the order dated 27.02.2001 passed by the learned A.C.J.M., Pakur whereby and whereunder cognizance has been taken for the offence under Section 323 of the Indian Penal Code against the petitioner. 3. The prosecution story as would appear from the First Information Report instituted by one Banti Kumar Yadav is to the effect that in Raj Intermediate School, Pakur forms of students of matriculation examination were being filled up. It has been alleged that the petitioner who was the Principal of the school was illegally collecting Rs. 500/- from each student to allow them to fill up the form. When some students protested, it was alleged that the Principal gave order for lathi charge resulting in injuries suffered by some students. 4. After investigation, police submitted final form showing the case to be false. After the final form was submitted before the learned court, the learned A.C.J.M., Pakur while disagreeing with the final form submitted by the police took cognizance for the offence punishable under Section 323 of the I.P.C. against the petitioner vide order dated 27.02.2001. 5. The learned counsel for the petitioner has submitted that the learned A.C.J.M. did not apply his judicial mind and wholly and mechanically had taken cognizance for the offence under Section 323 of the I.P.C. He has further submitted that in fact the present case is a counter blast of Pakur (T) P. S. Case No. 228 of 1999 which had been instituted by the petitioner. 6. The learned counsel for the State, on the other hand has submitted that the learned A.C.J.M., Pakur has power to disagree with the final form submitted by the police and as such there is no illegality in the order taking cognizance. He has further submitted that the learned Magistrate has only to see as to whether sufficient grounds are there to proceed against the accused persons, and therefore, a detailed order while taking cognizance is not at all necessary. 7. He has further submitted that the learned Magistrate has only to see as to whether sufficient grounds are there to proceed against the accused persons, and therefore, a detailed order while taking cognizance is not at all necessary. 7. After hearing the learned counsel for the parties, I find that after the institution of the First Information Report, investigation was done by the police which had submitted final form showing the case to be false against the petitioner. On submission of the final form, the learned A.C.J.M., Pakur decided to take cognizance for the offence under Section 323 of the I.P.C. It is not in dispute that if a final form is submitted by the police showing the case false against the accused, the learned Magistrate is not bound by the opinion of the Investigating Officer and is competent to exercise his discretion irrespective of the views expressed by the police in its report and to find out whether prima-facie an offence is made out or not and whether final form is to be accepted or cognizance should be taken. The question would then arise as to whether the learned Magistrate, if he disagrees with the final form submitted by the police showing the case false against the accused persons, it is incumbent upon him to give a detailed and reasoned order justifying such disagreement? 8. The investigation by the police is recorded in the case-diary in terms of Section 172 of the Cr. P.C. and if a final form is submitted, the learned Magistrate has to peruse the said record and it can either accept the final form or can disagree with the finding of the police and can take cognizance of the offence. If the learned Magistrate disagrees with the police report or the final form, he has to assign reasons with respect to such disagreement. The due application of mind in such cases will only reflect when the order passed by the -3-Magistrate is a well reasoned order. Reference in this connection may be made in the case of “Nupur Talwar Vs. the Central Bureau of Investigation, Delhi and Anr.” reported in (2012) 2 SCC 188 [:2012 (1) JLJR (SC) 344]. 9. The due application of mind in such cases will only reflect when the order passed by the -3-Magistrate is a well reasoned order. Reference in this connection may be made in the case of “Nupur Talwar Vs. the Central Bureau of Investigation, Delhi and Anr.” reported in (2012) 2 SCC 188 [:2012 (1) JLJR (SC) 344]. 9. The order dated 27.02.2001 which is passed by the learned A.C.J.M., Pakur by which cognizance has been taken for the offence under Section 323 of I.P.C. shows total non-application of mind on the part of the learned A.C.J.M. as while disagreeing with the police report and coming to the conclusion that prima-facie case is made out against the petitioner for the offence under Section 323 of the I.P.C., no reason has been assigned. This in my view is contrary to the settled proposition of law. 10. Accordingly, this application is allowed. The order dated 27.02.2001 passed by the learned A.C.J.M., Pakur in Pakur (T) P. S. Case No. 229 of 1999 corresponding to G. R. No. 504 of 1999 is quashed and set aside. 11. The matter is remanded back to the learned court below to pass a fresh order in accordance with law and in accordance with what has been discussed in this order.