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Jharkhand High Court · body

2016 DIGILAW 657 (JHR)

Rizwan Sk. Son of Mojam Sk. v. State of Jharkhand

2016-04-20

RONGON MUKHOPADHYAY

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ORDER : Rongon Mukhopadhyay, J. In this application the petitioners have prayed for quashing the order dated 23.12.2013 passed by the learned Sub-divisional Judicial Magistrate, Rajmahal whereby and where under cognizance has been taken for the offences punishable under Sections 147, 148, 149, 323, 324, 307, 337, 379 of the Indian Penal Code in connection with Barharwa (Kotalpokhar) P.S Case No. 37 of 2011. A further challenge has been made to the order dated 22.04.2014 passed by the learned Principal Sessions Judge, Sahibganj in Criminal Revision No. 20 of 2014 by which the order of the learned Sub-divisional Judicial Magistrate, Rajmahal dated 23.12.2013 has been affirmed. 2. A First Information Report was instituted in which it was alleged that on 14.04.2011 when the informant was filling earth in a pit in the land of the legislator, Akil Akhtar the named accused persons had come variously armed and assaulted the informant as well as Ashlam Sk. It is alleged that Rs. 500/- was also removed from his pocket. 3. Based on the aforesaid allegation Barharwa (Kotalpokhar) P.S Case No. 37 of 2011 was instituted and after investigation charge-sheet was submitted by the police against one Najrul Sk while keeping the investigation against the petitioners pending and pursuant to the submission of the charge-sheet the learned Additional Chief Judicial Magistrate, Rajmahal took cognizance on 05.07.2011 and transferred the case to the court of learned Sub-divisional Judicial Magistrate, Rajmahal. Subsequently final form was submitted by the police exonerating the petitioners from all the charges but however disagreeing with the final form vide order dated 23.12.2013 learned Sub-divisional Judicial Magistrate, Rajmahal once again took cognizance for the offences punishable under Sections 147, 148, 149, 323, 324, 307, 331, 379 of the Indian Penal Code. The petitioners preferred a revision being Criminal Revision No. 20 of 2013 which was also dismissed by the learned Principal Sessions Judge, Sahibganj vide order dated 22.04.2014. 4. Heard Mr. Raja Ravi Shekhar Singh, learned counsel appearing for the petitioners and Mr. Arun Kumar Pandey, learned A.P.P. 5. It has been submitted by the learned counsel for the petitioners that once cognizance has been taken by the learned court below there was no occasion for taking cognizance for the second time by disagreeing with the final form submitted by the police exonerating the petitioners from the allegation levelled against them as cognizance cannot be taken twice for the same offence. It has been submitted that since it is a sessions triable case the only option which the Magistrate had in the circumstances if he was satisfied that there were sufficient materials to proceed against the accused he should have committed the case to the court of sessions in terms of Section 209 of the Code of Criminal Procedure. Learned counsel further submits that the revisional court did not appreciate this aspect of the matter while affirming the order of the learned Sub-divisional Judicial Magistrate, Rajmahal dated 23.12.2013. 6. Mr. Arun Kumar Pandey, learned A.P.P., has submitted that the learned Magistrate was within his rights to disagree with the final form submitted by the police while taking cognizance and summoning the petitioners to face trial. It has also been submitted that even if it is assumed that the cognizance has been illegally taken by the learned Magistrate the same cannot vitiate the proceeding in view of Section 460(e) of the Code of Criminal Procedure. 7. The question which has been raised by the learned counsel for the petitioners is whether the learned Magistrate could have taken cognizance after submission of final form by the police or whether the Magistrate could have straight away committed the case to the court of sessions if he was satisfied that there were sufficient materials against the petitioners to proceed against them. The contention of the learned counsel for the petitioners is no longer res integra in view of the judgment of the Hon’ble Supreme Court in the case of Dharam Pal and ors. v. State of Haryana and anr. reported in, (2013) 3 Est.Cr.C. 307 (SC). 8. In the case of Dharam Pal and ors. v. State of Haryana and anr. (Supra) it was held as follows:- “24. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(2) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.” 9. While considering the gamut of cases on the issue raised by the petitioner this Court in Cr. M.P. No. 1539 of 2011 while considering a similar situation which had arisen in the present application had held 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 trail, 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 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 trail 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.“ 10. It would thus appear that the learned Sub-divisional Judicial Magistrate, Rajmahal was precluded from taking cognizance for the second time as after submission of charge-sheet against Najrul Sk. cognizance had already been taken on 05.07.2011. Once the final form had been submitted subsequent to taking of cognizance learned Magistrate could not have taken cognizance once again and the only course available to him was if he found that sufficient materials exist, to commit the case to the court of session after which the procedure laid down under Section 193 Cr.P.C. were required to be followed by the learned sessions court. 11. The question which has been raised by the learned counsel for the petitioner and which has been dealt with in the preceding paragraphs have not been properly appreciated by the leaned Principle Session Judge, Sahibgagj in his order dated 22.04.2014 while affirming the order passed by the learned Sub-divisional Judicial Magistrate, Rajmahal dated 23.12.2013. 12. In such view of the matter both the impugned orders suffer from legal infirmity and accordingly the order dated 23.12.2013 passed by the learned Sub-divisional Judicial Magistrate, Rajmahal, wherein after taking cognizance petitioners were summoned to face trial as well as the subsequent order dated 22.04.2014 passed by the learned Principal Sessions Judge, Sahibganj in Criminal Revision No. 20 of 2014 affirming the order passed by the learned Sub-divisional Judicial Magistrate, Rajmahal is, hereby, quashed and set aside. 13. The matter is remitted back to the learned Sub-divisional Judicial Magistrate, Rajmahal, to proceed in the matter in accordance with law. 14. This application stands allowed and disposed of. Application disposed of.