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2015 DIGILAW 270 (JHR)

Sattar Mian v. State of Jharkhand

2015-02-19

RONGON MUKHOPADHYAY

body2015
JUDGMENT :- RONGON MUKHOPADHYAY, J. 1. Heard Mr. Mahesh Kumar Sinha, learned counsel for the petitioner and Mr. T.N. Verma learned counsel for the State. 2. In this application, the petitioner has prayed for quashing the order dated 19.10.2012 passed by the learned Principal Sessions Judge, Latehar in N.D.P.S. Case No. 15 of 2010, whereby and whereunder the cognizance was taken for the offence punishable under Sections 15, 18, 22 and 27 of the N.D.P.S. Act. 3. It appears that a first information report was instituted with the allegation that in village Shibla in course of raid, three acres of land were found cultivated with Posta (Afim) and the named accused persons had been seen cultivating the same for the purpose of sale. It has been stated that 100 pieces of plants were seized for the purpose of its verification. It has further been alleged that raiding party reached village Jhitar Koma and 2 acres of land cultivated with Posta were found and on enquiry, it was found that named accused persons have cultivated the same for the purpose of sale. On the basis of the aforesaid allegations, the prosecution had instituted a case against the petitioners. 4. It appears that after investigation, the police submitted charge-sheet on 23.8.2010 against Ekram Mian, pursuant to which, learned Sessions Judge was pleased to take cognizance for the offence punishable under Sections 15, 18, 22 and 27 of the N.D.P.S. Act and investigation was shown to be pending against the rest named accused persons including the present petitioners. In the said order dated 23.8.2010 there was a direction to split up the records against the accused persons against whom investigation was still pending. It further appears that subsequently on 19.10.2012 a final report was submitted being Final Form No. 88 of 2012 dated 30.9.2012 showing lack of evidence against the named accused persons therein including the petitioners, but vide order dated 19.10.2012, the learned Principal Sessions Judge, Latehar disagreed with the final form filed by the Investigating Officer and was pleased to issue non-bailable warrant of arrest against all the accused persons. 5. 5. Learned counsel for the petitioners have submitted that the learned court below did not apply its judicial mind while passing the order dated 19.10.2012 in view of the fact that there is no discussion in the said order with respect to the materials available on record, which have been collected by the investigating officer and which is reflected in the case diary. It has further been submitted that the order by which non-bailable warrant of arrest has been issued against the accused persons including the petitioners on 19.10.2012 does not reflect independent application of mind on the part of the concerned court and in a mechanical manner the order of non-bailable warrant has been issued against the petitioners. 6. Learned counsel for the State on the other hand has submitted that there are specific allegations levelled against the petitioners. Even as per the Forensic Science Laboratory report Morphine was detected and in such view of the matter, the petitioners should be directed to face trial. He further submits that the impugned order does not contain any illegality to cause any interference. 7. After hearing the parties and after going through the records, I find that pursuant to the final report, which has been submitted by the police dated 30.9.2012 showing lack of evidence against the petitioners warrant of arrest has been ordered to be issued. The order dated 19.10.2012 apparently reveals that the learned Principal Sessions Judge did not apply independent judicial mind while issuing non-bailable warrant of arrest against all the accused persons including the petitioners. In this context reference may be made to the judgment rendered in the case of M/s. India Carat Pvt. Ltd. vs. State of Karnataka and Another, (1989) 2 SCC 132 . In Para 16 of the said judgment it has been held as under:- "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. 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. 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. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1) (a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against second respondent and order the issue of summons to him." 8. In the case of Nupur Talwar vs. Central Bureau of Investigation, Delhi and Another, (2012) 2 SCC 188 , while considering the power of the Magistrate at paras 16 and 17, it has been held thus:- "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 investigation 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. 17. The taking of cognizance means the point in time when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. 17. The taking of cognizance means the point in time when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. At the stage of taking of cognizance of offence, the court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record." 9. The correctness of the order, whereby cognizance of the offence has been taken by the Magistrate unless it is perverse or based on no material should be sparingly interfered with. However the facts, which appear in the present case seem to suggest that the final report was submitted and the learned Principal Sessions Judge, Latehar has straightway held that sufficient materials are available in the case diary against the accused persons including the petitioners and had issued non-bailable warrant of arrest against them and in the impugned order dated 19.10.2012 nothing has been discussed with respect to the materials which have surfaced against the accused persons. The learned trial court has disagreed with the finding of the investigating officer without assigning any reasons thereto, which shows apparent lack of independent application of judicial mind on the part of the concerned trial court and as such, the illegality in the impugned order dated 19.10.2012 cannot be allowed to be sustained. Accordingly, the impugned order dated 19.10.2012, by which, it was indicated that sufficient materials are available in the case diary against the accused persons including the present petitioners, and by which, it was directed to issue non-bailable warrant of arrest against all the above named accused persons is quashed and set aside so far as the petitioners are concerned. The matter is remanded back to the trial court to take fresh decision in accordance with law and in accordance with what has been stated above. 10. With the aforesaid observations and directions, this application is allowed.