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Ashok Yadav v/s State of Bihar

    Crl. Misc. 14477 Of 2004

    Decided On, 07 October 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE CHANDRAMAULI KR.PRASAD

    For the Appearing Parties: B.P. Pandey, Rakesh Kumar Mishra, S.K. Tiwary, Sourendra Pandey, M.N. Jha, Advocates.



Judgment Text

(1.) This application has been filed for quashing the order dated 16-4-2003 passed by the Chief Judicial Magistrate. Munger in Dharhara P. S. Case No. 8 of 2003, whereby he has taken cognizance of the offence under Sections 302 and 120B/ 34 of the Indian Penal Code and 27 of the Arms Act and directed for issuance of non-bailable warrant of arrest against the petitioners.

(2.) On the basis of a report given by one Ganesh Yadav, before the Sub-Inspector of Police, Dharhara Police Station on 7-1 -2003 at 2.30 p.m. Dharhara P. S. Case No. 8 of 2003 was registered under Sections 302 and 120B/34 of the Indian Penal Code and 27 of the Arms Act. In the First Information Report 12 persons have been shown as the accused including the petitioners and one Sanjay Mishra. Police after investigation submitted final form as contemplated under Section 173 of the Code of Criminal Procedure and although forwarded six persons for trial but six of the accused persons including the petitioners and one Sanjay Mishra were not sent up for trial. The final form submitted by the police came up for consideration before the learned Chief Judicial Magistrate and on perusal of the statements and other materials collected during the course of investigation being prima facie satisfied, by the impugned order dated 16-4-2003, took cognizance of the offence against the petitioners as also other accused persons, who were not forwarded for trial. One of them namely, Sanjay Mishra, aggrieved by the same preferred an application before this Court, which was registered as Criminal Misc. No. 16427 of 2003 (Sanjay Mishra v. State of Bihar) and this Court by order dated 1-4-2004 set aside the said order, which has also been impugned in the present application. It is stated that the said order has attained finality, as nobody has chosen to chal

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lenge the same before any superior Court.

(3.) Mr. B. P. Pandey, Senior Advocate, appearing on behalf of the petitioners contends that the very same order, which is impugned in the present application, having been quashed by this Court on an application filed by another accused, consistency demands that the said order be also quashed so far as these petitioners are concerned. In fairness to him he has not supported the principle which has been invoked in the said case to quash the order.

(4.) It is relevant here to state that while quashing the order this Court observed as follows :

"Learned counsel for the petitioner submits that since this was a case triable by the Court of Session the learned Magistrate had no authority to differ with the chargesheet submitted by the police at this stage, take cognizance against him and summon him to face trial. The only optidn open to the prosecution has to summon the petitioner under Section 319 wherever materials during trial would surface against him. He relied upon a decision of the Supreme Court reported in 2001 (1) BLJ 472 : (2001 Cri LJ 123) and particularly in para 10 of the same. In terms of the law laid down in the aforesaid judgment, this application is allowed and the impugned order dated 16-4-2003 Is set aside. It goes without saying that after commitment the Sessions Judge will proceed with the case in accordance with law in so far as the petitioner also is concerned."

(5.) From a reading of the Judgment of this Court it gives me an impression that this Court accepted the submission advanced on behalf of the accused person that in a case triable exclusively by the Court of Session, the learned Magistrate had no authority to differ with the conclusion of the Investigating Officer, take cognizance of the offence and issue process against such persons who have not been sent up for trial and the said view flows from the judgment of the Supreme Court in the case of Kishori Singh v. State of Bihar and others, 2002 (1) PLJR 123 : 2001 (1) BLJ 472 : (2001 Cri LJ 123).

(6.) Question therefore is as to whether I should follow the order passed by this Court in relation to another accused namely, Sanjay Mishra and quash the impugned order, without going into its validity. Consistency is the virtue of the Court, but in a case in which the decision relied on as precedent has been rendered without considering the relevant statutory provision or misreading the law cannot be termed as binding precedent. I am of the opinion that decision rendered dehors the settled law is not fit to be followed as a matter of course.

(7.) Now I proceed to examine the case on first principle as to whether in a.case exclusively triable by the Court.of Session when the police does not forward an accused for trial, the Magistrate before whom such report is submitted is bound to accept the same and only course left open is to the Sessions Court to array such persons as an accused in exercise of power under Section 319 of the Code of Criminal Procedure. Section 154 of the Code of Criminal Procedure hereinafter referred to as the Code provides for recording of information by the Police Officer of a Police Station in respect to a cognizable offence, commonly known as First Information Report. The criminal justice system is set on motion by recording of such information. Section 156 of the Code empowers the Police Officer to investigate cases and Section 161 of the Code confers power to Police Officer making investigation to examine orally such witnesses, who are acquainted with the facts and circumstances of the case. The investigation culminates by forwarding a report in the prescribed form under Section 173 of the Code and the said provision further obliges the Officer-in-Charge of the Police Station submitting the report to indicate whether any offence has been committed and if so by whom and the person who appears to be acquainted with the circumstances of the case. Ordinarily, in this part of the Country when the case is found to be true the report so submitted is known as the charge-sheet and when the Officer Incharge does not forward a person for trial, although shown as accused in the First Information Report or later on made accused during the course of investigation, as final report. Final form submitted under Section 173 of the Code is thereafter required to be placed before the Magistrate under Section 190 of the Code. Thus, under the Scheme of the Code, the wheel for criminal investigation is set on motion by registration of the First Information Report and culminates with the submission of the report. The Police has statutory right to investigate and its right is unfettered, subject of course to limitation known in law.

(8.) The next question which requires consideration is in regard to the power of the Magistrate empowered to take cognizance of the offence. Section 190 of the Code confers on the Magistrate the power to take cognizance of the offence same reads as follows :

"190. Cognizance of offences by Magistrate. (1) subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence

(a) upon receiving a complaint of facts which constitute such offence ; (b) upon a police report of such facts; (c) Upon information received from any person other than a police Officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."

(9.) In my opinion, a Magistrate dealing with the final form has three options. The first option to the Magistrate is that he may agree with the final report and accept it and close the proceeding. But there may be a case where the Magistrate may take the view on consideration of the final report that the opinion formed by the police is not based on full and complete investigation, in which case, in my opinion, the Magistrate shall have ample jurisdiction to give direction to the police under Section 156 (3) of the Code to make further investigation. The third option available to the learned Magistrate is to take cognizance of the offence under Section 190(1) (b) of the Code, if in its opinion the facts set out in the final form constitute an offence, notwithstanding contrary conclusion of the Investigating Officer. I am fortified in my view from the judgment of the Supreme Court in the case of M/s. India Carat Pvt. Ltd. v. State of Karnataka and Anr, AIR 1989 SC 885, wherein it has been held as follows (Para 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)(b) 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."

(10.) The question falling for consideration in this case has squarely been answered by the Supreme Court in the case of M/s. Swil Ltd. v. State of Delhi and Anr., 2001 (2) PCCR 187 : 2001 (4) PLJR (SC) 163 : (2001 Cri LJ 4173) and in the said case it has been held as follows (Para 7):

"Further, the present case, there is no question of referring to the provisions of Section 319 of the Code of Criminal Procedure. That provision would come into operation in the course of any inquiry into or trial of an offence. In the present case, neither the Magistrate was holding inquiry as contemplated under Section 2(g), Cr. P.C. nor the trial had started. He was exercising his jurisdiction under Section 190 of taking cognizance of an offence and issuing process. There is no bar under Section 190, Cr. P. C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet."

(11.) As stated earlier the impugned order so far as it related to accused Sanjay Mishra, whose case undisputedly stands on the same footing was quashed by this Court relying on the decision of the Supreme Court in the case of Kishori Singh (2001 Cri LJ 123) (supra). In the said case it has been held as follows (Paras 9 and 10):

"After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgments and on examining the order dated 10-6-1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the FIR as accused persons, but not charge-sheeted in the charge-sheet that was filed by the police under Section 173 of the Cr. P. C."

"So far as those persons against whom charge-sheet has not been filed, they can be arrayed as "accused persons"in exercise of powers under Section 319, Cr. P. C. When some evidence or materials are brought on record in course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the material, comes to the conclusion that sufficient materials exists against them even, though the police might not have filed charge sheet, as has been explained in the latter three Judges Bench decision. Neither of the contingencies has arisen in the case in hand."

(12.)

It is relevant here to state that the Supreme Court while rendering its judgment in the case of Kishori Singh (supra) has also placed reliance on its earlier judgment in the case of Raj Kishore Prasad v. State of Bihar and Ann, (1996) 4 SCC 495 : (1996 Cri LJ 2523). In the said case the Supreme Court was considering the power of the Magistrate under Section 209 of the Code and whether in exercise of the said power he could associate another person as accused. While considering the aforesaid question the Supreme Court answered the same in the following words (Para 16) : 'Thus we come to hold that the power under Section 209, Cr. P. C. to summon a new offender was not vested with a Magistrate on the plain reading of its text not being an 'inquiry' and material before him not being 'evidence'. When such power was not so vested, his refusal to exercise it cannot be corrected by the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, summon the accused to stand trial, along with the accused meant to be committed for trial before it. Presently it is plain that the stage for employment or Section 319, Cr. P. C. has not arrived. The order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant along with the accused proposed to be committed to stand trial before it, is patently Illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under Section 319, Cr. P. C. when handling a matter under Setion 209, Cr. P. C., the Court of Session, in purported exercise of revisional powers cannot obligate, It to do so. The question posed at the out set is answered accordingly in this light. When the case comes after commitment to the Court of Session and evidence is recorded, it may then in exercise of its power under Section 319, Cr. P. C. on the basis of the evidence recorded by it, if circumstances, warranting, proceed against the appellant, summon him for the purpose, to stand trial along with the accused committed, providing him the necessary safeguards envisaged under sub-section (4) of Section 319. Such course is all the more necessary in the instant case when expressions on merit have extensively been made in the orders of the Magistrate, the Court of Session and that of the High Court. Any other course would cause serious prejudice to the appellant. We order accordingly."

(13.) It is worthwhile mentioning here that the Supreme Court while laying down the law in the case of Kishori Singh (2001 Crl LJ 123) (supra) has also placed reliance on its earlier decision in the case of Ranjit Singh v. State of Punjab, (1998) 7 SCC 149 : (1998 Cri LJ 4618). In this case also the question before the Supreme Court was not with reference to the power of the learned Magistrate vis-a-vis section 190 of the Code but at a later stage and for the reasons stated above, same has no bearing so far as the present case is concerned.

(14.) To put the record straight, it is relevant here to state that a learned single Judge of this Court, while disposing of Cr. Misc. No. 14580 of 2000 (Birendra Singh and Ors. v. The State and Ann) relying on the case of Kishori Singh (2001 Cri LJ 123) (supra) quashed the order taking cognizance and issuance of summons in respect of the accused persons, who were not charge- sheeted, although named in the First Information Report. In the words of the learned Judge, he had no option than to quash the order in view of the judgment of the Supreme Court in Kishori Singh (supra), which I have distinguished. I am not inclined to accept the petitioner's submission that accused named in the First Information Report and not charge-sheeted cannot be proceeded Reported in 2001 (3) BLJR 2203 against and the Magistrate cannot disagree with the report, while exercising its power under Section 190 of the Code.

(15.) I had the occasion to consider this question in the case of Horil Sao v. State of Bihar (2002 (1) PLJR 318) wherein on a review of the decision of the Supreme Court I had held as follows :

"For the reasons stated above I do not have the slightest doubt in mind that the learned Magistrate, while exercising its power under Section 190 of the Code is not bound by the conclusion arrived at by the Officer Incharge of the Police station in a case exclusively triable by Court of Session while submitting the report under Section 173 of the Code and in a case in which the materials collected during the course of investigation and forming part of the report under section 173, Cr. P. C. prima facie, suggest complicity of the accused persons in the crime although named in the FIR but not charge-sheeted, still the Magistrate has such power under Section 190 of the Code. I hasten to add that although the police is master of investigation.but what treatment has to be given to the report is in the domain of the Magistrate."

(16.) It is unfortunate that the attention of the Court hearing the case of another accused, namely, Sanjay Mishra was not brought to the decision of the Supreme Court in the case of M/s. Swil Limited (2001 Cri LJ 4173) (supra) and Horil Sao (supra).

(17.) In view of the settled legal position, I do not find any error in the order Impugned and hence, not inclined to quash the same on the doctrine of consistency.

(18.) In the result, I do not find any merit in this application and it is dismissed accordingly. Petition dismissed
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