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2019 DIGILAW 794 (JHR)

Bijay Mahato v. State Of Jharkhand

2019-04-02

RAJESH SHANKAR

body2019
JUDGMENT Rajesh Shankar, J. - The present criminal miscellaneous petition has been filed for quashing the order dated 24.05.2006 passed by the Judicial Magistrate,1st Class, Seraikella, whereby the cognizance of offences under Sections 147,148,435,307 and 302/149 of the IPC has been taken against the petitioners. Further prayer has been made for quashing the proceeding subsequent to the said order taking cognizance in connection with G.R. No.34/2004 arising out of Complaint Case No.C1-9/04, pending in the court of Sri A. Lal, Judicial Magistrate, Seraikella. 2. Complaint Case No.C1-9/2004 has been filed by the opposite party No.2 alleging, inter alia, that the complainant is the owner of one Tata Spacio Vehicle bearing registration No.JH-05D-7040, which was used to carry staff of S.B.I. and Civil Court from Jamshedpur to Seraikella and back. On many occasions, the vehicle was used by the S.B.I., Seraikella to bring and remit huge cash amount to other branches of the bank. Being aware of the above facts, the petitioners told the helper- Bahadur Mahato and the driver- Pawan Mahato to stop the vehicle at specified place on the signal for the purpose of plundering the cash amount, but they refused to do so due to which the petitioners threatened the driver and helper of the vehicle of the complainant with dire consequence. On 14.01.2004, the vehicle of the opposite party No.2 was taken to village Bandhdih by driver Pawan Mahato, helper Bahadur Mahato, his uncle Chinibas Mahato and Shankar Mahato where Chinibas Mahato was to meet his brother-in-law. As soon as the vehicle stopped near the house of Bindu Mahato brother-in-law of Chinibas Mahato, the petitioners surrounded the vehicle and dragged Bahadur Mahato out of the vehicle. The petitioners were armed with lathi and started assaulting him mercilessly causing several injuries on his person. When Chinibas Mahato went to save Bahadur Mahato, he was also brutally assaulted. Pawan Mahato and Shankar Mahato fled away on seeing the petitioners assaulting Bahadur Mahato and his uncle. The petitioners murdered Bahadur Mahato and caused serious injury to Chinibas Mahato. The petitioners also set fire Tata Spacio vehicle of the opposite party No.2. For the alleged incident two first information reports were lodged. Pawan Mahato and Shankar Mahato fled away on seeing the petitioners assaulting Bahadur Mahato and his uncle. The petitioners murdered Bahadur Mahato and caused serious injury to Chinibas Mahato. The petitioners also set fire Tata Spacio vehicle of the opposite party No.2. For the alleged incident two first information reports were lodged. Firstly Seraikella P.S Case No.3 of 2004 corresponding to G.R. No.33 of 2004 was lodged on the basis of the fardbeyan of the Bijay Mahato (petitioner No.1) wherein after investigation the police submitted charge sheet under Section 147/149/323/307 of the Indian Penal Code, which ended in terms with the judgment dated 30.06.2011 passed by the Chief Judicial Magistrate, Seraikella holding accused Chunnu Mahato, Hiru Mahato, Shankar Mahato alias Shambhu Mahato, Pawan Mahato and Chinibas Mahato guilty of the offence under Sections 147 and 323 of IPC and they were released on probation bond of Rs.5000/- with one surety of like amount each under Section 4 of the Probation of Offenders Act to maintain peace and good behaviour for a period of one year. Another first information report being Seraikella P.S Case No.4 of 2004 corresponding to G.R. No.34 of 2004, was registered on the basis of the self-recorded statement of the Sub-Inspector of Police, namely, Ashok Kumar wherein the police submitted final form under Sections 435,427,304,307 and 34 of the Indian Penal Code against unknown persons. It was alleged in the complaint filed by the opposite party No.2 that one of the injured witnesses, namely, Chinibas Mahato had disclosed the name of the petitioners before the police who were involved in the alleged crime, however, the same was ignored by the police while submitting final form. 3. The learned court below vide order dated 24.05.2006 took cognizance of the offences under Sections 147,148,435,307,302/149 of the Indian Penal Code against the petitioners. 4. The learned counsel for the petitioners submits that it has not been mentioned in the impugned order dated 24.5.2006 that the cognizance has been taken out of the protest petition filed by the opposite party No.2, rather it is apparent that it has been taken in pursuance of fresh complaint. Moreover, later on the said complaint was treated as a protest petition and G.R. No.34 of 2004 was inserted in the said case which is also bad-in-law because when the complaint was filed on 23.01.2004, the investigation was still going on. Moreover, later on the said complaint was treated as a protest petition and G.R. No.34 of 2004 was inserted in the said case which is also bad-in-law because when the complaint was filed on 23.01.2004, the investigation was still going on. The present case has been filed at a belated stage only to help the accused persons of G.R. No.33 of 2004 who are the witnesses in the present complaint. The police investigated the case and submitted final form observing that the deceased and the other person, namely, Chinibas Mahato who sustained injury had gone to the house of the petitioners with other accused persons to kill Bijay Mahato and 100-200 villagers, who thronged there, burnt the vehicle and beaten them, out of which one of the accused Bahadur Mahato died at the spot and Chinbas Mahato got severe injury. For the same set of occurrence there was no need to file a separate complaint or protest petition because as per the law the first case i.e. Seraikella P.S Case No.3 of 2004 (G.R. No.33 of 2004) was sufficient and all subsequent cases were required to be merged in the same FIR. The second FIR or complaint is not permissible in law for the same set of occurrence. The said ratio has already been laid down by the Hon''ble Supreme Court in the case of T.T Anthony and others, reported in AIR 2001 SC 2637 . After investigation, the police submitted the charge sheet against unknown persons in Seraikella P.S.- Case No.4 of 2004 which was registered suo motu by the police for the death of Bahadur Mahato and for sustaining injury by Chinibas Mahato, whereas the present complaint was instituted against the informant of Saraikella P.S. Case No.3 of 2004, his brothers and other relatives due to personal vendetta and old enmity. It is not only a counter-blast but is an abuse of the process of court and thus the order taking cognizance is fit to be quashed. The court below, without applying its judicial mind and without appreciating the facts and circumstances of the case, took cognizance of the offences against the petitioners in a mechanical manner and failed to appreciate that no occurrence as alleged took place and thus the order taking cognizance is bad in law. 5. The court below, without applying its judicial mind and without appreciating the facts and circumstances of the case, took cognizance of the offences against the petitioners in a mechanical manner and failed to appreciate that no occurrence as alleged took place and thus the order taking cognizance is bad in law. 5. The learned counsel for the opposite party No.2 submits that the Investigating Officer had recorded the statement of Chinibas Mahato who categorically named the above accused persons (petitioners herein) as the assailants but the police did not take appropriate step in this regard. 6. Heard the learned counsel for the parties and perused the materials available on record. 7. The learned counsel for the petitioners puts reliance on the judgment of the Hon''ble Supreme Court rendered in the case of T.T. Anthony & others v. State of Kerala, (2001) 6 SCC 181 , in which it has been held as under:- "18. An information given under sub-section (1) of Section 154, Cr.P.C. is commonly known as first information report (FIR) though this term is not used in the Code. It is a very important document. And as its nickname suggests it is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Sections 169 or 170, Cr.P.C., as the case may be, and forwarding of a police report under Section 173, Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154, Cr.P..C. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of a police station is the first information report - FIR postulated by Section 154, Cr.P.C. All other informations made orally or in writing after the commencment of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section,162, Cr.P.C. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of Cr.P.C. Take a case where an FIR mentions cognizable offence under Sections 307 or 326 IPC and the investigating agency learns during the investigation or receives fresh information that the victim died, no fresh FIR under Section 302, IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H - the real offender - who can be arraigned in the report under Section 173(2) or 173(8), Cr.P.C., as the case may be. It is of course permissible for the Investigating Officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused. 20. It is of course permissible for the Investigating Officer to send up a report to the Magistrate concerned even earlier that investigation is being directed against the person suspected to be the accused. 20. From the above discussion it follows that under the scheme of the provisions of Sections 154,155,156,157,162,169,170 and 173, Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154, Cr.P.C. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer-in-charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173, Cr.P.C." 8. In the aforesaid case, it has been held that there cannot be second FIR for the same set of offence. If any information of a cognizable offence given to the police is entered in the station house diary, the same is regarded as an FIR and any subsequent information as to the same set-of offence given to the police is to be regarded as statement under Section 162 of Cr.P.C. and such information cannot be treated as an FIR. 9. However, in the present case Seraikella P.S. Case No.4 of 2004 (G.R. No.34 of 2004) was registered on the basis of the self-recorded statement of the Sub-Inspector of Police, namely, Ashok Kumar stating that on 14.01.2004,8-10 persons came at the house of Bijay Mahato on a Tata Spacio vehicle, bearing Registration No.JH-05D-7040 and 100-200 persons thronged at the place of occurrence armed with lathi, danda and hockey sticks and they assaulted them. Consequently Bahadur Mahato died and Chinibas Mahato sustained grievous injury. Consequently Bahadur Mahato died and Chinibas Mahato sustained grievous injury. However during the pendency of the investigation of G.R. No.34 of 2004, the present complaint was instituted by the opposite party No.2 alleging that in spite of specific statement of the injured witness, namely, Chinibas Mahato relating to the involvement of the present petitioners in the alleged occurrence, the police did not take any step against them. Thus, the facts and situation of the present case are entirely different from the facts of the case of T.T Antony (supra) and as such the ratio of the same will not be applicable to the case of the petitioners. 10. Section 210 of Cr.P.C. specifically deals with the situation where a complaint case and police investigation is pending in respect of same set of offence. It has been provided that when a complaint case and police investigation is pending for the same set of offence, the Magistrate shall stay the proceeding of such inquiry or trial and call for a report on the matter from the police officer conducting investigation and if the report is made by the Investigating Officer under Section 173 disclosing the commission of cognizable offence by the person who is also an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on the police report. Clause (3) of Section 210 of Cr.P.C. provide that where the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial which was stayed by him in accordance with the provisions of this code. 11. Since the police had submitted the final form in Seraikella P.S. Case No.4 of 2004 showing the offence as true against unknown persons, the court below amalgamated Seraikella P.S Case No.4 of 2004 corresponding to G.R. No.34 of 2004 and Cl. No.9 of 2004 and on going through the complaint, statements of the complainant and the inquiry witnesses on oath, took cognizance of the offences vide order dated 24.05.2006. No.9 of 2004 and on going through the complaint, statements of the complainant and the inquiry witnesses on oath, took cognizance of the offences vide order dated 24.05.2006. On perusal of the impugned order taking cognizance, it appears that the injured eye-witness of the occurrence was examined as inquiry witness No.1 who supported the manner of occurrence as alleged in the complaint. Other inquiry witnesses have also supported the contents of the complaint. 12. The very purpose of Section 482 Cr.P.C. is to prevent an abuse of process of court and to secure the ends of justice. The power of quashing of a criminal proceeding should be exercised by the High Court sparingly with circumspection and that too in the rarest of rare cases. The High Court while hearing a quashing petition is not supposed to embark upon an enquiry as to the veracity of the allegation made in the complaint. Moreover, the learned Magistrate at the stage of cognizance is only required to go through the complaint, peruse the statements of the complainant and the enquiry witnesses on oath and, thereafter, to pass an order of cognizance if the said allegation prima facie makes out a case against an accused. The defence of an accused is to, however, be taken into consideration at subsequent stage in terms with the provisions of Cr.P.C. It is a settled proposition of law that while considering the case for quashing of a criminal proceeding, the High Court should not put an appropriate prosecution to an end prematurely unless there are compelling circumstances to do so. 13. Since a prima facie case is made out against the petitioners on the basis of the materials brought on record by the opposite party No.2 before the learned court below, I see no reason to quash the order taking cognizance dated 24.05.2006. This petition is, accordingly, dismissed. 14. However, the petitioners are at liberty to raise all the points available in their defence at an appropriate stage before the learned court below. 15. It is made clear that the observations made hereinabove is confined to the present case filed under Section 482 of the Code of Criminal Procedure and would not in any manner influence the proceeding of G.R. No.34 of 2004 arising out of Complaint Case No.C1-9/04, pending before the learned court below. 16. 15. It is made clear that the observations made hereinabove is confined to the present case filed under Section 482 of the Code of Criminal Procedure and would not in any manner influence the proceeding of G.R. No.34 of 2004 arising out of Complaint Case No.C1-9/04, pending before the learned court below. 16. The interim order dated 17th March,2011 staying further proceeding of G.R. No.34 of 2004 arising out of Complaint Case C1-9/2004, pending in the court of Sri A. Lal, Judicial Magistrate, Seraikella stands vacated.