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Jharkhand High Court · body

2015 DIGILAW 259 (JHR)

Upen Chandra Mahato v. State of Jharkhand

2015-02-18

RONGON MUKHOPADHYAY

body2015
ORDER : Heard Mr. H. K. Mahto, learned counsel for the petitioner and Mr. Arun Kumar Pandey, learned counsel for the State. 2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Ichagarh P. S. Case No. 7 of 2000 corresponding to G. R. No. 30 of 2000 including the order dated 11.07.2000 passed by the learned Additional Chief Judicial Magistrate, Seraikella whereby and whereunder cognizance has been taken for the offences punishable under Sections 147, 148, 149, 332, 333, 323, 379, 325, 353, 307 of the Indian Penal Code and under Section 27 of the Arms Act. 3. It appears that a First Information Report was instituted on the self statement of Sub-Inspector of Police, Tiruldih O.P., P.S. Ichagarh in which it was stated that when he was on law and order duty on 18.01.2000, a dispute arose between the members of Mela Committee and some anti social elements regarding installing of cycle-stand. It has been alleged that on being informed, when the informant went to the place of occurrence, several persons armed with various weapons rushed towards the police and in the meantime, one Balram Lohra fired upon the police, but thankfully none was injured. It has further been alleged that the anti social elements started pelting stones upon the police personnel’s, but on account of interference of Ex-M.L.A. of the locality, the police personnel’s were rescued and thereafter taken to Tiruldih O.P. 4. On the basis of the aforesaid statement of Sub-Inspector of Police, Ichagarh P. S. Case No. 7 of 2000 was instituted. After investigation was conducted, a charge-sheet was submitted against 3 accused persons whereas with respect to the rest accused persons, investigation was kept pending, but so far as the petitioner was concerned, final form was submitted showing lack of evidence. However, vide order dated 11.07.2000, the learned Additional Chief Judicial Magistrate, Seraikella on receiving a supplementary chargesheet dated 30.06.2000 was pleased to take cognizance against the accused persons named in the charge-sheet including the petitioner against whom final form was submitted by the police. 5. However, vide order dated 11.07.2000, the learned Additional Chief Judicial Magistrate, Seraikella on receiving a supplementary chargesheet dated 30.06.2000 was pleased to take cognizance against the accused persons named in the charge-sheet including the petitioner against whom final form was submitted by the police. 5. The learned counsel for the petitioner has assailed the impugned order dated 11.07.2000 by submitting that the learned Additional Chief Judicial Magistrate, Seraikella in a mechanical manner had taken cognizance for the offences mentioned therein without considering the fact that final report has been submitted against the petitioner showing lack of evidence. He has further submitted that no reason has been assigned as to why he has differed from the final report submitted by the investigating officer and on this score alone, the cognizance dated 11.07.2000, so far as petitioner is concerned deserves to be quashed. In this context, he has referred to the judgment in the case of “Manohar Mandal Vs. State of Bihar” reported in 1979 BLJ 642 , and in the case of “Sanjay Singh Vs. State of Bihar” reported in (2003) 1 Eastern Criminal Cases 484 (Pat.) : 2002 (3) PLJR 116 . 6. The learned counsel for the State on the other hand, while defending the order dated 11.07.2000 has submitted that the learned Magistrate has power to differ with the findings of the investigating officer and from the perusal of the impugned order it appears that the case diary and the charge-sheet were looked into and subsequent thereto cognizance has been taken for the alleged offence. He therefore submits that no illegality has been committed by the learned ACJM, Seraikella while taking cognizance vide order dated 11.07.2000. 7. After hearing the learned counsel for the parties and after going through the records, I find that the supplementary charge-sheet dated 30.06.2000 was submitted against 6 accused persons whereas in respect to the petitioner, it was mentioned that there was lack of evidence. The learned A.C.J.M., Seraikella without giving any reasons and without application of independent judicial mind has mechanically taken cognizance on 11.07.2000. In the case of “Sanjay Singh Vs. State of Bihar” (supra), the Court had considered the question as to whether the final form submitted by the police could have been accepted without introducing the protest petition. In this context it was held as follows: 5. In the case of “Sanjay Singh Vs. State of Bihar” (supra), the Court had considered the question as to whether the final form submitted by the police could have been accepted without introducing the protest petition. In this context it was held as follows: 5. “Considering all the facts and circumstances this court finds that the learned Chief Judicial Magistrate, Buxar, did not pass proper order in accordance with law. It was not proper for him to accept the version of the police with regard to petitioner without noticing the protest petition and at the same time when he had accepted the final report with regard to the petitioner, it was improper for him to include the name of the petitioner among the list of the accused persons against whom cognizance had been taken.” 8. The facts of the present case are noticeably different from the case referred to above. In the present case after submission of the supplementary charge-sheet in which the petitioner was not sent up for trial on account of lack of evidence, the learned A.C.J.M., Seraikella having disagreed with the submission of the final form by the investigating officer has proceeded to take cognizance. No notice or any protest cum complaint petition was filed by the informant/complainant so as to enable the learned A.C.J.M., Seraikella to take cognizance. In the case of “India Carat (P) Ltd. v. State of Karnataka” reported in (1989) 2 SCC 132 , while considering the steps, the Magistrate has to follow when there is a police report that no case is made out against the accused, it was held as follows: 16. “The position is, 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 the 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.” 9. In the case of “Nupur Talwar Vs. the Central Bureau of Investigation, Delhi and Anr.” reported in (2012) 2 SCC 188 : 2012 (1) PLJR (SC) 344, it was held 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.” 10. What would thus fall from the above is that while considering the final form submitted by the investigating officer, the concerned Magistrate may differ with the same, but reasons have to be assigned as to why the Magistrate is not agreeable to the final report submitted by the police. Apparently, the order shows lack of reasonings on the part of the learned A.C.J.M., Seraikella while taking cognizance for the offences. This shows that there was no application of independent judicial mind upon the facts of the case. In such circumstances, the order dated 11.07.2000 being not in accordance with law is liable to be quashed and set aside. 11. Apparently, the order shows lack of reasonings on the part of the learned A.C.J.M., Seraikella while taking cognizance for the offences. This shows that there was no application of independent judicial mind upon the facts of the case. In such circumstances, the order dated 11.07.2000 being not in accordance with law is liable to be quashed and set aside. 11. Accordingly, this application is allowed and the order dated 11.07.2000 by which cognizance has been taken for the offences punishable under Sections 147, 148, 149, 332, 333, 323, 379, 325, 353, 307 of the Indian Penal Code and under Section 27 of the Arms Act is quashed, so far as the petitioner is concerned and the matter is remanded back to the learned A.C.J.M., Seraikella to pass a fresh order in accordance with law and in accordance with what has been discussed hereinabove. 12. This application is allowed.