Criminal Miscellaneous No.29646 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- GOPAL LAL SIZUAR, SON OF LATE NARAIN LAL KATARIAR RESIDENCE OF SIZUAR STATE, RAM SAGAR, POLICE STATION- CIVIL LINES, DISTRICT GAYA. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. BABAN LAL BARIK S/O BHARAT LAL BARIK R/O MOHALLA KRISHNA DWARKA, P.S. CIVIL LINES, DISTRICT GAYA. ... ... OPPOSITE PARTIES. ---- For the Petitioner : M/S Ashwini Kumar Singh, Sr.Adv. Pankaj Kumar Das,Adv. Pankaj Kumar Singh,Adv. For the State : Mr. Lala Kailash Bihari Prasad,A.P.P. For O.P. No.2 : Mr. Ranjeet Kumar, Adv. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 20.9.1999 passed by Sri B.M. Ray, Judicial Magistrate, Ist Class, Gaya in G.R. Case No.89 of 1990/Trial No.529 of 1999 arising out of Gaya Civil Lines P.S. Case No.12 of 1999. By the said order, the learned Magistrate has summoned the petitioner as an additional accused in the case for offence under Sections 147, 149, 323, 324/34 of the Indian Penal Code. 2. Short fact of the case is that on the - 2 - basis of fardbeyan of opposite party no.2, an F.I.R. vide Gaya Civil Lines P.S. Case No.12 of 1999 was registered on 9.1.1999 for the offence under Sections 147, 148, 324, 323, 379 of the Indian Penal Code. In the F.I.R., seven persons including this petitioner were named as an accused in Column No.7. Fardbeyan of informant was recorded on 7.1.1999 at about 4.00 P.M. in Paligram Hospital, Gaya by the Sub Inspector of Police, Kotwali Police Station, Gaya. It was disclosed in the fardbeyan that on the same day at about 1.00 P.M., while he was returning from Gaya Railway Station, on way, he was intercepted by seven accused persons including the present petitioner and they started abusing the petitioner. When the informant asked not to abuse all the accused persons infuriated. It was disclosed that some of the accused persons were carrying gupti and lathi. In the said occurrence, this petitioner by abusing the informant ordered other accused persons to kill the informant and thereafter, accused Sugolal Pathak inflicted gupti blow over the informant which hit on the right hand of the informant. Accused Chhotelal Meharwar had assaulted him with lathi and rest of the accused persons assaulted the - 3 - informant by fist. It was also alleged that one of the accused persons in the said occurrence forcibly took his watch from his hand and thereafter, on hulla being raised by the informant, several persons assembled there and witnessed the occurrence. On the basis of fardbeyan, an F.I.R. vide Gaya Civil Lines P.S. Case No.12 of 1999 was registered and police started investigating the case. After investigation, police submitted charge sheet against six accused persons for the offence under Sections 147, 148, 323, 324 of the Indian Penal Code. However, the allegation of snatching of watch was found untrue. 3. After submission of charge sheet, learned Chief Judicial Magistrate, Gaya perused the same as well as case diary. The learned Magistrate by its order dated 22.4.1999 dropped the proceeding against the petitioner. However, the court was satisfied that prima facie case under Sections 147, 148, 324 of the Indian Penal Code was made against six F.I.R. named accused persons shown in Column No.4 of the charge sheet and, accordingly, after taking cognizance, learned Chief Judicial Magistrate directed for issuance of summons and transfered the case to the court of Shri P.R. - 4 - Mishra, Judicial Magistrate, Ist Class, Gaya for disposal in accordance with law and thereafter, on the date of framing of the charge i.e. on 4.8.1999, a petition was filed on behalf of the informant indicating therein that police in connivance with this petitioner had submitted final report in his favour. It was further stated that there were enough material in the case diary itself warranting summoning of the petitioner. The learned Judicial Magistrate, by its order dated 20.9.1999, allowed the petition dated 4.8.1999 and directed for issuance of summon to this petitioner. 3. Aggrieved with the order dated 20.9.1999, the petitioner approached this Court by filing the present petition. 4. While challenging the order dated 20.9.1999, Shri Ashwini Kumar Singh, learned Senior Counsel appearing on behalf of the petitioner, submits that the order impugned was without jurisdiction and contrary to the procedure prescribed in the Code of Criminal Procedure. It was argued that once the learned Chief Judicial Magistrate had dropped the proceeding relating to the petitioner by its order dated 22.4.1999, the transferee Magistrate was having no jurisdiction to - 5 - pass an order for summoning the petitioner which amounts to review of earlier order. It was argued that review of an order by the Magistrate was not permissible and it is prohibited under Section 362 of the Code of Criminal Procedure. Learned Senior Counsel, in support of his stand, has relied upon several judgments of Hon’ble Supreme Court reported in 2008(4)SCC 82 (R. Rajeshwary Vs. H.M. Jagdish), 2005(12)SCC 361 (Surendra Singh Vs. State), 2008(2) PLJR SC 167 (Sumita Jain Vs. Pawan Kumar Jain) and 2006(1) SCC 273 (Dharampal Vs. State of Haryana). Shri Ashwini Kumar Singh, relying on the aforesaid judgments as well as while referring to the provisions contained in Section 362 of the Code of Criminal Procedure, has argued that the impugned order i.e. order dated 20.9.1999 passed by the Judicial Magistrate, Gaya amounts to review of order dated 22.4.1999 passed by the Chief Judicial Magistrate, Gaya. It was further argued that for the purposes of adding a person as accused for facing trial along with accused persons, who are already put on trial, there is only one provision in the Code of Criminal Procedure i.e. Section 319 of the Code of Criminal Procedure. It was submitted that power under Section 319 of the Code of - 6 - Criminal Procedure is to be exercised in a case where some evidence showing involvement of a person is brought on record. It was submitted that evidence as per provision contained in Section 3 of the Evidence Act means that unless oral or documentary material is placed during the trial before the court, it cannot be considered as evidence and in absence of any such evidence power under Section 319 of the Code of Criminal Procedure cannot be exercised. It was submitted that in the present case, whatever material was available on the date of dropping the case of the petitioner i.e. on 22.4.1999 whereby after dropping the case of the petitioner, learned Chief Judicial Magistrate had taken cognizance in respect of other accused, same materials were available on the date of impugned order i.e. order dated 20.9.1999. Accordingly, Shri Singh has submitted that in absence of any new evidence/material, the learned Magistrate was not entitled to pass an order for summoning the petitioner to face the trial at the stage of charge. 5. Learned Senior Counsel besides submitting that the impugned order is liable to be set aside on the ground that review of earlier - 7 - order was not permissible, has faintly argued that the petition dated 4.8.1999, which was filed by the informant for summoning the petitioner was not maintainable. He submits that under the Code of Criminal Procedure, the informant or his counsel is required only to render assistance to the Public Prosecutor, but in the present case, the informant himself had filed petition before the Magistrate and as such the petition was liable to be ignored by the learned Magistrate, but instead of ignoring the same, the learned Magistrate had proceeded on the said petition and thereafter, impugned order was passed. On aforesaid grounds, learned Senior Counsel for the petitioner has prayed for quashing of the order dated 20.9.1999 passed in G.R. Case No.89 of 1990/Trial No.529 of 1999 arising out of Gaya Civil Lines P.S. Case No.12 of 1999. 6. In this case, Shri Ranjeet Kumar, learned advocate has appeared on behalf of opposite party no.2 and he has vehemently opposed the prayer of the petitioner. In this case, Shri Lala Kailash Bihari Prasad, learned Senior Counsel appearing on behalf of the State has rendered assistance to the court for coming to the just decision in the present case. - 8 - 7. Shri Ranjeet Kumar, learned advocate appearing on behalf of opposite party no.2 has heavily relied upon a judgment of Hon’ble Supreme Court reported in A.I.R. 1967 SC 1167 (Raghubansh Dubey Vs. State of Bihar). Learned counsel for the opposite party no.2 has referred to paragraph-10 of Raghubansh Dubey’s case (Supra), which says that “when a Magistrate takes cognizance under Section 190(1)(b) on a police report he takes cognizance of the offence and not merely on the particular persons named in the charge sheet, and, therefore the Magistrate is entitled to summon additional accused against whom he considers that there was good evidence, after perusal of statements recorded by the police under Section 161 of the Cr.P.C. and the other documents referred to in Section 173 of Cr. P.C. even without examination of witnesses in court”. Accordingly, he has argued that in the present case, after examining the case diary and looking into the statement of witnesses recorded under Section 161 of the Code of Criminal Procedure and only after being satisfied regarding the involvement of the petitioner in the crime of the present case, the learned Magistrate, has rightly by its order dated 20.9.1999, has directed for - 9 - issuance of summon against the petitioner. According to learned counsel for the opposite party no.2, the order dated 20.9.1999 passed by the learned Magistrate is in strict compliance with the provisions contained in the Code of Criminal Procedure and need no interference by this Court. 8. Besides hearing, learned counsel for the parties, I have also examined the materials available on record of the present case. In the case, on perusal of the copy of the charge sheet, which has been annexed as Annexure-2 to the petition, it is evident that though seven persons were named as accused, name of six accused persons were included in accused column of the charge sheet, who were sent up for trial. The name of petitioner was incorporated in Column No.2 of the charge sheet. It is further evident that during the investigation, the allegation of informant in respect of commission of offence under Sections 147, 148, 323 and 324 of the Indian Penal Code was found true. However, the allegation of snatching of watch was found untrue. 9. On perusal of order dated 22.4.1999, it appears that the learned Chief Judicial Magistrate, while recording a sentence in the order that “the - 10 - proceeding of the case against accused Gopal Lal Sizuar is hereby dropped”, has committed an error. In its order dated 22.4.1999, the learned Chief Judicial Magistrate was required to take cognizance of the offence and there was no occasion for him to record a finding for dropping the case in respect of the petitioner particularly in view of the fact that in the charge sheet, the petitioner’s name had occurred in Column No.2. At this stage, it is necessary to indicate that even in a situation where an F.I.R. named accused is not recommended for trial and police recommends for prosecuting other accused persons, a Magistrate is well competent to take cognizance of offence even against accused not sent up for trial, if there is material on record to show his involvement. 10. So far as present case is concerned, it is not in dispute that till the date of passing of the impugned order, no witness was examined. Once on the same material, the learned Chief Judicial Magistrate, rightly or wrongly, had passed order for dropping the case against the petitioner on the same material the transferee Magistrate was not required to summon the petitioner without any evidence brought on record at subsequent stage. - 11 - 11. In the facts and circumstances of the present case, particularly in view of the fact that for an occurrence which took place on 8.1.1999, no progress could take place in the case before the court below since criminal proceeding in G.R. No.89 of 1999/Tr. No.529 of 1999, arising out of Gaya Civil Lines P.S. Case No.12 of 1999 was stayed by this Court on 21.2.2000, at this belated stage it would not be proper to direct the petitioner to participate in the proceeding before the court below. 12. Accordingly, for the ends of justice, it is desirable to quash the order dated 20.9.1999 passed by Sri B.M. Roy, Judicial Magistrate, Ist Class, Gaya in G.R. No.89 of 1999/Tr. No.529 of 1999, arising out of Gaya Civil Lines P.S. Case No.12 of 1999 and same is hereby quashed. Petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 3rd August, 2010 N.A.F.R./N.H.