CRIMINAL MISCELLANEOUS No.21350 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. CHHOTAN PRASAD, SON OF NAWAB SINGH, 2. ANIL PRASAD, SON OF LATE GOVIND SINGH, 3. RAVINDRA PRASAD, SON OF HARISHARAN PRASAD, 4. MANOJ PRASAD, SON OF LATE SAHDEO PRASAD, 5. SUDHIR PRASAD, SON OF CHHOTAN PRASAD, 6. TUNI PRASAD, SON OF RAM RAGI PRASAD, 7. BISHWANATH PRASAD, SON OF CHHOTAN PRASAD, ALL RESIDENT OF VILAGE KUNDWAPAR, P.S. EKANGARSARAI, DISTRICT NALANDA. ... ... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. SUNDERDEO PRASAD SINGH, S/O LATE BRAHAMDEO PRASAD SINGH 3. VIDYA BHUSHAN, S/O SUNDERDEO PRASAD SINGH BOTH RESIDENT OF VILLAGE KUNDWAPAR, P.S. EKANGARSARAI, DISTRICT NALANDA. ... ... OPPOSITE PARTIES. ---- For the Petitioners : M/S Kanhaiya Prasad Singh, Sr.Adv. Awadhesh Prasad Sinha, Adv. For O.P. Nos.2 and 3 : M/S Chitranjan Sinha, Sr. Adv. Binay Kumar, Adv. Manoj Madhav, Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Seven petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 12.8.1999 passed in Trial No.189 of 1999, G.R. No.109 of 1991 (arising out of Ekangarsarai P.S. Case No.30 of 1991). By the said order, learned Magistrate, while allowing the 2 discharge petition of two accused persons, who were earlier summoned, has found that a prima facie case under Section 302/34 of the Indian Penal Code was made out against all the petitioner and directed for issuance of non bailable warrant of arrest against the petitioners. 2. Short fact of the case is that on 1.2.1991, on the basis of written report, submitted by one Binod Kumar Singh, an F.I.R. vide Ekangarsarai P.S. Case No.30 of 1991 was registered under Section 302/34 of the Indian Penal Code against ten un-known accused persons. However, the informant had suspected the involvement of ten accused persons including seven petitioners. It was disclosed by the informant that on 1.2.1991, while he returned from Patna to his village in morning, he was informed that his son Aditya Kumar aged 3 & 1/2 years was missing from his house. The informant with his wife and villagers started to search his son. However, the resident of Dakshini Tola did not come along with the informant for searching his son. On the contrary, they shut down their doors. After some time, dead body of son of the informant 3 was found near a primary school. The informant suspected the hands of villagers of Dakshini Tola and also disclosed the name of ten persons which include seven petitioners. Accordingly, an F.I.R. vide Ekangarsara P.S. Case No.30 of 1991 was registered on 1.2.1991 against un- known. After investigation, police submitted charge sheet against two accused persons, namely, Sunderdeo Prasad Singh and Vidya Bhushan for the offence under Sections 304(A)/201/34 of the Indian Penal code. During investigation, it was found that the son of the informant died due to accident by the vehicle of one of the accused persons. Accordingly, charge sheet was submitted against two accused persons. After submitting charge sheet, by an order dated 18.5.1993, the learned Magistrate took cognizance of the offence under Sections 304(A)/201/34 of the Indian Penal code against two charge sheeted accused persons and transferred the case to the court of Shri P.N. Sharma, Judicial Magistrate, Ist Class for its disposal. At the stage of charge, a petition was filed on behalf of two charge sheeted accused persons for their discharge under Section 239 of the Indian Penal Code. By the 4 impugned order i.e. order dated 12.8.1999, Shri A.K. Mishra, learned Judicial Magistrate, Ist Class allowed the discharge petition and at the same time, after taking cognizance of the offence under section 302/34 of the Indian Penal code against the petitioners, directed for issuance of non bailable warrant of arrest against the petitioners. 3. Aggrieved with the order dated 12.8.1999 passed by Shri A.K. Mishra, learned Judicial Magistrate, Ist Class, Hilsa, the petitioners approached this Court by filing the present petition. On 31.8.1999, learned counsel for the petitioner was permitted to add Sunderdeo Prasad Singh and Vidya Bhushan as opposite party nos.2 and 3, who were discharged by the impugned order. While issuing notice to opposite party nos.2 and 3, this Court directed that till further order, operation of impugned order dated 12.8.1999 shall remain stayed. It was also pointed out by learned counsel for the petitioner on 31.8.1999 that the informant has already died. Subsequently, on 24.4.2000, the present petition was admitted for hearing and till disposal of this application, part of the impugned order dated 12.8.1999, so far as 5 issuance of non bailable warrant of arrest against the petitioner was concerned, was ordered to remain stayed. 4. Shri Kanhaiya Prasad Singh, learned Senior Counsel appearing on behalf of all the petitioners, at the very outset, submits that in the present case, the petitioners were not named as accused and F.I.R. was lodged against un-known. During investigation, it was found that son of the informant died due to accident and as such complicity of opposite party nos.2 and 3 came to the notice of the Investigating Officer on an allegation of commission of offence under sections 304(A)/201/34 of the Indian Penal Code. Accordingly, charge sheet was submitted against opposite party nos.2 and 3 for the same offence and thereafter, by order dated 18.5.1993, the learned Magistrate took cognizance of the offence. Against the order of cognizance, the opposite party nos.2 and 3 preferred a quashing application vide Cr. Misc. No.1300 of 1993. However, this Court did not interfere with the impugned order at the stage of cognizance. However, liberty was granted to the opposite party nos.2 and 3 to file discharge petition before the court below. Shri 6 Kanhaiya Prasad Singh, learned Senior Counsel has referred to Annexure-3 to the petition, which is a copy of the order of cognizance dated 18.5.1993 and Annexure-4 i.e. order dated 18.1.1999 passed by this Court in Cr. Misc. No.1300 of 1993. It was submitted by Shri Singh that in the case, after submission of charge sheet and perusal of the case diary, once the learned Magistrate had taken cognizance of the offence under Sections 304(A)/201/34 of the Indian Penal Code against opposite party nos.2 and 3, at subsequent stage, without any new material, the learned Magistrate was not authorized to pass the impugned order. It was argued that by the impugned order, the learned Magistrate has virtually reviewed/recalled its own earlier order i.e. order dated 18.5.1993. Moreover, in this case, the order of cognizance was not interfered even by this Court while opposite party nos.2 and 3 had approached this Court by invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure vide Cr. Misc. No.1300 of 1993. It was further argued that since the petitioners were not forwarded by the police in the charge sheet to face trial, the learned Magistrate was 7 not authorized to take cognizance against the petitioners, who had not figured as accused in the charge sheet and the learned Magistrate, after submission of charge sheet, had rightly taken cognizance against opposite party nos.2 and 3. Accordingly, it has been prayed to quash the impugned order i.e. order dated 12.8.1999 to the extent whereby the learned Magistrate had directed for issuance of non bailable warrant of arrest against the petitioners after taking cognizance under Section 302/34 of the Indian Penal Code. 5. Shri Chitranjan Sinha, learned Senior Advocate appearing on behalf of the opposite party nos.2 and 3, has supported the part of the impugned order whereby the learned Magistrate had discharged opposite party nos.2 and 3. However, it was submitted by Shri Sinha that even in a case where an accused is not forwarded to face trial by the police, after submission of the police report and on the basis of materials available on record, a Magistrate is well competent to take cognizance of the offence differing with the police report. In support of his contention, Shri Sinha has relied on a judgment of the apex 8 court reported in AIR 1989 SC 885 (M/S India Carat Pvt. Ltd. Vs. State of Karnataka and another). Shri Sinha, learned Senior Counsel has specifically relied on paragraph-16 of the judgment, which is as follows :- “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 9 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.” 6. Learned Senior Counsel for opposite party nos.2 and 3, in some and substance, has argued that while discharging the opposite party nos.2 and 3 and taking cognizance for offence under Section 302/34 of the Indian Penal Code against the petitioners, the learned Magistrate has committed no error, but the order was passed on the basis of materials 10 available in the entire case diary. The learned Magistrate had examined the case diary extensively and thereafter, discharged the opposite party nos.2 and 3, which requires no interference. It has further been submitted that in view of judgment passed in M/S India Carat Pvt. Ltd.’s case (Supra), the learned Magistrate, by the impugned order, has rightly proceeded against the petitioners. The present petition is required to be rejected. 7. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State, has also argued that the impugned order is an exhaustive order and the learned Magistrate, after examining the entire case diary and materials available on record, has rightly issued or passed order for issuance of non bailable warrant of arrest against the petitioners after taking cognizance of the offence under Section 302/34 of the Indian Penal Code. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. In this case, it is true that the informant in its written report, which was filed before the police, had categorically 11 suspected the involvement of the petitioners and other three and gave the description of the petitioners, but fact remains that F.I.R. was lodged against un-known. In the F.I.R., suspicion was raised against the petitioners. However, during investigation, it was found that it was a case of death by negligence and rash driving and as such charge sheet was submitted against opposite party nos.2 and 3. This Court has not examined the present case in the context of ascertaining accusation against the opposite party nos.2 and 3, but the material has been examined on the point as to whether the learned Magistrate, at the stage of charge, was right in adding the petitioners as an accused and taking cognizance of the offence contrary to the earlier order passed by the learned Magistrate, while taking cognizance of the offence. In the case, order of cognizance was passed on an allegation of commission of offence under Sections 304(A)/201/34 of the Indian Penal Code and that too against two accused persons i.e. opposite party nos.2 and 3. Once on perusal of the entire case diary, the learned Magistrate had taken cognizance of the offence under Sections 304(A)/201/34 of the 12 Indian Penal against two accused persons, who were charge sheeted by the police, at subsequent stage, the same Magistrate was not entitled to pass an order contrary to its own order that too without any new material. At the time of quashing the impugned order, no further material was brought to the notice of the learned Magistrate in addition to the material, which were available at the time of cognizance. 9. In view of the facts and circumstances, the court is of the opinion that part of the order dated 12.8.1999, so far as taking cognizance of the offence under Section 302/34 of the Indian Penal Code and for issuance of non bailable warrant of arrest against the petitioners, is not sustainable in the eye of law and same is set aside. 10. Accordingly, the petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 24th January,2011 N.A.F.R./N.H.