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Himachal Pradesh High Court · body

2019 DIGILAW 642 (HP)

Bharat Bhushan Vaid v. State of H. P.

2019-05-29

CHANDER BHUSAN BAROWALIA

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JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present petition, under Section 397, read with Section 401 of the Code of Criminal Procedure has been maintained by the petitioner against the order dated 04.08.2018, passed by learned Additional Chief Judicial Magistrate, Kasauli, District Solan, H.P., in case No. 133/2 of 2018/17, whereby learned Chief Judicial Magistrate finds it just to forward the petition of the petitioner to the Court of learned Sessions Judge at the time of committal and issued summons against accused Jagbhushan Kapil, mentioned in column No. 1. 2. The petitioner in person has argued that the learned Magistrate below vide impugned order has committed the trial to the learned Sessions Judge and has not exercised his jurisdiction to summon respondents No. 2 to 4. He has further argued that the learned Magistrate has failed to exercise his jurisdiction in the facts and circumstances of the case to order for further investigation which was necessary to meet the ends of justice. In support of his arguments "that learned Magistrate was required to exercise his jurisdiction", the petitioner has referred the law laid down by Hon'ble Supreme Court in Dharam Pal vs. State of Haryana, (2014) 3 SCC 306 and has argued that respondents No. 2 to 4 were in column No. 2 of the police report presented before the learned Magistrate under Section 173(2) of the Code of Criminal Procedure. The petitioner argued that the learned Magistrate should have exercised the powers under Section 173(8) of the Code of Criminal Procedure and order for the further investigation of the case, as there was sufficient material before him to do so. 3. On the other hand, Mr. Shrawan Dogra, learned Senior Counsel for respondents No. 2 and 3 while inviting the attention of this Court to Sections 190, 193, 209, 319 and 173(8) of the Code of Civil Procedure and the law as referred hereinabove, has vehemently argued that the learned Magistrate cannot apply mind and take cognizance of the offences which are exclusively triable by the Court of Session, as he can neither conduct the inquiry, as the legislature has amended the Code purposely to avoid the cognizance to be taken by the Magistrate, because cognizance can only be taken once either by the learned Magistrate or by learned Sessions Judge. He has further argued that the order passed by learned Court below is as per law and the revisional powers of this Court are not required to be exercised to look into that order, as the same was passed after appreciating the law correctly and to its true perspective. Mr. Dogra, further argued that as far as the application of mind under Section 173(8) of Cr. P.C. is concerned, it has to be exercised by the Court of competent jurisdiction and in the cases exclusively triable by the Sessions Judge(s), the Magistrate(s) has/have no authority/jurisdiction to apply mind to that aspect also. So, in these circumstances order passed by learned Magistrate is as per law and suffers from no infirmity. 4. Mr. S.C. Sharma, learned Additional Advocate General has argued that the impugned order needs no interference by this Court, as it was passed as per the law. 5. Mr. N.S. Chandel, learned Senior Advocate, has argued that the Magistrate after complying with the provisions of Sections 204 to 207, comes to the conclusion that the case is triable by the Sessions Judge has to commit the case to the learned Sessions Judge without going into other merits of the case as per the spirit of law. Lastly, he has argued that as the impugned order passed by learned Magistrate is as per law, the same needs no interference. 6. The judgments of Hon'ble Supreme Court relied upon by learned counsel for the parties when gone into, makes it clear that the Magistrate has to do the following acts when report is placed before him: (a) He has to see whether the case is triable by him or not. (b) If he comes to the conclusion that the case is triable by the Court of Session, he has to commit the case to Sessions Court for trial. (c) In case there is a protest petition he has to consider and dispose of the same in accordance with law. Now coming to the protest petition, it is settled law that any person can maintain protest petition before the Magistrate and whether the Magistrate has to consider that protest petition while taking into consideration the Police report or not, the answer is "yes", because without considering the protest petition the Magistrate cannot make up his mind with respect to proper provision to be applied in the facts and circumstances. Simply to say that role of the Magistrate is just as a Post Office is not acceptable. The role of a Magistrate is though passive. This passive role is required to be considered in appropriate respect, as the Hon'ble Supreme Court in Dharam Pal vs. State of Haryana and Balveer Singh vs. State of Rajasthan has held that Magistrate has to also apply its mind with regard to accused persons mentioned in column 2 of the police report, merits of the case and whether re-investigation is required or not and thereafter he has to summon them, supply them the copies of challan and then direct them to appear before the learned Session Judge, where the case is committed as per law. 7. The role of the magistrate is little more than a simple Post Office, as he has to decide the protest petition, he has to summon the persons to whom he finds that they are accused even if they are not named as accused by the police and kept in column 2 of the police report, if from the facts on record he comes to conclusion that their act is culpable and there is prima facie case against them. This the Magistrate can only do after considering the protest petition and applying his mind to that. The role of the Magistrate while committing is not so passive that he is only to forward the papers. 8. The Hon'ble Supreme Court in Dharam Pal vs. State of Haryana, (2014) 3 SCC 306 has given a view regarding the role, which Magistrate has 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. The relevant extract of the judgment is as under: "33. As far as the first question is concerned, we are unable to accept the submissions made by Mr. Chahar and Mr. Dave that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate has no other function, but to commit the case for trial to the Court of Session, which could only resort to Section 319 of the Code of array any other person as accused in the trial. In other words, according to Mr. In other words, according to Mr. Dave, there could be no intermediary stage between taking of cognizance under section 190(1) (b) and Section 204 of the Code issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any control over the persons named in column 2 of the police report nor the Sessions Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event the Sessions Judge ultimately found material against the persons named in column 2 of the police report, the trial would have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same. 34. The view expressed in Kishun Singh case, in our view, is more acceptable since, as has been held by this Court in the cases referred to hereinbefore, the Magistrate has ample powers to disagree with the final report that may be filed by the police authorities under Section 173(2) of the Code and to proceed against the accused persons dehors the police report, which power the Sessions Court does not have till the Section 319 stage is reached. The upshot of the said situation would be that even though the Magistrate had powers to disagree with the police report filed under Section 173(2) of the Code, he was helpless in taking recourse to such a course of action while the Sessions Judge was also unable to proceed against any person, other than the accused sent up for trial, till such time evidence had been adduced and the witnesses had been cross-examined on behalf of the accused. 35. 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. PC. In that 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. PC. In that 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. Thereafter, if on being satisfied that a case had been made out to proceed against the accused 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. Similar view has been taken by the Hon'ble Supreme Court in Balveer Singh vs State of Rajasthan, wherein in sub-para 15.1 it has been held as under: "15.1. The Magistrate has ample powers to disagree with the final report that may be filed by the police under Section 173(2) of the Code and to proceed against the accused persons dehors the police report. 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) of the Code. 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. Thereafter, if on being prima facie satisfied that a case had been made out to proceed against the accused 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. Further, if the Magistrate decides to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same is found to be triable by the Sessions Court. 10. Further, if the Magistrate decides to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same is found to be triable by the Sessions Court. 10. So, in these circumstances, This Court finds that learned Magistrate was required to consider the protest petition, order for further investigation, summon respondents No. 2 to 4 and direct them to appear before the learned Sessions Judge after supplying them the copies of the chargesheets, if the Magistrate comes to the conclusion that they are accused persons, as it is for the Magistrate to firstly apply its mind with respect to the facts, which have come in the protest petition and the party, has a right to appeal against the order of the Magistrate and to preserve this right of the party, the protest petition is required to be remanded back to learned Additional Chief Judicial Magistrate, Kasauli, District Solan, H.P. to adjudicate the same as per the law. Ordered accordingly. Parties to appear before learned Additional Chief Judicial Magistrate, Kasauli, District Solan, H.P. on 26th June, 2019. 11. With aforesaid observations, the petition, so also pending application(s), if any, stands disposed of.