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2016 DIGILAW 72 (JHR)

Raj Kishore Prasad v. State of Jharkhand

2016-01-08

RONGON MUKHOPADHYAY

body2016
ORDER : Heard Mr. Jitendra Shankar Singh, learned counsel for the petitioner and Mr. Anand Kumar Pandey, learned counsel for the opposite party. 2. The petitioner in this instant application has prayed for quashing the entire criminal proceeding in connection with Mehrama (Thakurgangti) P. S. Case No. 151 of 2012 including the order dated 20.05.2013 passed by the learned Judicial Magistrate, Godda whereby and whereunder cognizance has been taken for the offence punishable under Section 420, 406, 409 & 34 of the I.P.C. 3. The prosecution story as would appear from the FIR is to the effect that a boundary wall measuring about 100 feet collapsed in the night of 05.07.2012 on account of lack of technical supervision of the construction of the said boundary wall of the diary building in village Kharkhodia under block Thakurgangti, District Godda. 4. Upon investigation, the police having found the case not true against the accused persons has submitted final report, but the learned Judicial Magistrate, Godda vide order dated 20.05.2013 disagreed with the final report so submitted and took cognizance for the offences punishable under Sections 420, 406, 409 & 34 of the I.P.C. 5. Mr. J. S. Singh, learned counsel for the petitioner has assailed the impugned order dated 20.05.2013 as well as the initiation of the criminal prosecution against the petitioner by submitting that the petitioner was at the relevant point of time working as an Executive Engineer. It has been submitted that the sample of the collapsed boundary wall were sent for analysis and the same was found to be as per the specifications. It is also been submitted that the boundary wall was subsequently reconstructed by the contractor/agency prior to institution of the FIR and since no wrongful loss was caused to the government, the initiation of the criminal case itself is an abuse of the process of Court. Learned counsel has also submitted that although the police has submitted final form vide final report no. 22 of 2013 dated 30.04.2013 on the ground of “mistake of facts”, but the learned Judicial Magistrate, Godda while disagreeing with the final report submitted by the Investigating Officer did not assign any reason as to what prompted him to take cognizance for the offences alleged. 22 of 2013 dated 30.04.2013 on the ground of “mistake of facts”, but the learned Judicial Magistrate, Godda while disagreeing with the final report submitted by the Investigating Officer did not assign any reason as to what prompted him to take cognizance for the offences alleged. It has also been submitted that the order dated 20.05.2013 shows total non-application of mind on the part of the concerned Judicial Magistrate, Godda and in this context he has relied upon a judgment in the case of “Nupur Talwar Vs. C.B.I.” reported in (2012) 11 SCC 465 as well as judgment in the case of “Sunil Bharti Mittal Vs. C.B.I.” reported in (2015) 4 SCC 609 . 6. Countering the arguments advanced by the learned counsel for the petitioner Mr. Anand Kumar Pandey, learned A.P.P. has submitted that since the boundary wall was not constructed as per the requirement, the same collapsed leading to institution of an FIR. It has also been submitted that a Joint Inquiry Committee had conducted an inquiry and irregularity on the part of the petitioner in discharging his official duty of not taking due diligence was also taken note of and in such circumstances, the petitioner has been rightly fastened with the criminal liability. It has also been submitted that while passing the impugned order dated 20.05.2013, the learned Judicial Magistrate, Godda had made a mention about perusing the case diary and thereafter coming to a conclusion that a prima-facie case is made out against the petitioner. In such circumstances, it has been argued by the learned A.P.P. that the present application is liable to be dismissed. 7. The main plank of argument of the learned counsel for the petitioner rests upon the non-reasonings given in the impugned order dated 20.05.2013. It seems that upon investigation, the police had submitted final report showing the case to be that of “mistake of facts”, but the learned Judicial Magistrate, Godda disagreed with the findings of the Investigating Officer and took cognizance for the offences punishable under Sections 420, 406, 409 & 34 of the I.P.C. The order dated 20.05.2013 only mentions about perusal of the case-diary and taking of cognizance. The impugned order does not disclose any reason whatsoever as to what necessitated the learned Judicial Magistrate, Godda to differ with the findings of the Investigating Officer while taking cognizance. The impugned order does not disclose any reason whatsoever as to what necessitated the learned Judicial Magistrate, Godda to differ with the findings of the Investigating Officer while taking cognizance. It is a settled proposition of law that on submission of a police report, the learned Magistrate has to disclose as to whether commission of an offence exists or not and he has to form his own independent opinion based on the materials available in the investigation report. The impugned order dated 20.05.2013 does not disclose the independent application of judicial mind by the learned Judicial Magistrate while differing with the final report submitted by the investigating officer. 8. In the case of “India Carat (P) Ltd. Vs. State of Karnataka” reported in (1989) 2 SCC 132 , it was held:- “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. 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 the second respondent and order the issue of summons to him.” 9. 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 the second respondent and order the issue of summons to him.” 9. The aforesaid view of the Hon'ble Supreme Court was followed in the case of “Nupur Talwar” (supra). In the case of “Sunil Bharti Mittal” (supra) while considering a similar question, the Hon'ble Supreme Court held as follows:- “48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not. 50. Person who has not joined as accused in the charge-sheet can be summoned at the stage of taking cognizance under Sectio 190 of the Code. (see SWIL Ltd. Vs. State of Delhi). It is also trite that even if a person is not named as an accused by the police in the final report submitted, the court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused (see Union of India Vs. Prakash P. Hinduja). Thus, the Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there has to be sufficient material in the police report showing his involvement. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer.” 10. In that case, the Magistrate is empowered to ignore the conclusion arrived at by the investigating officer and apply his mind independently on the facts emerging from the investigation and take cognizance of the case. At the same time, it is not permissible at this stage to consider any material other than that collected by the investigating officer.” 10. What would thus fall from the above, is that the Magistrate is fully empowered to disagree with the findings of the Investigating Officer and can apply his independent judicial mind, but the said application of independent judicial mind has to be reflected in the order taking cognizance. In the present case, as has been discussed above, mere mention had been made about a perusal of the case diary and thereafter, cognizance was taken. Nowhere, in the impugned order dated 20.05.2013, it was disclosed or could be deciphered that the learned Judicial Magistrate had applied his independent judicial mind. In such circumstances, therefore, it would be imperative for this Court to interfere in the order taking cognizance. 11. In such view of the matter, the order dated 20.05.2013 passed by the learned Judicial Magistrate, Godda in Mehrama (Thakurgangti) P. S. Case No. 151 of 2012 is hereby quashed and set aside and the matter is remanded back to the learned Judicial Magistrate, Godda to pass a fresh order in accordance with law. 12. This application is disposed of in the above terms.