CRIMINAL MISCELLANEOUS No.21941 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------- BASUDEO MAHTO, Son of Siban Mahto, resident of Village- Kamarthu, P.S. Karai, District-Nalanda --- Petitioner Versus THE STATE OF BIHAR -------------- For the petitioner: S/Sri Rajendra Prasad, Sr.Advocate Pramod Kumar & Ritesh Kumar, Advocates For the State: Smt. Indu Bala Pandey, A.P.P ----------- 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 1.5.2000 passed by the learned Addl. Chief Judicial Magistrate, Hilsa, whereby he has taken cognizance of offences under Sections 302,120B/34 of the Indian Penal Code in Hilsa P.S. Case No.58 of 1999 on the basis of supplementary chargesheet submitted by the police. 2. Short fact of the case is that the petitioner was made one of the accused along with three other accused persons in Hilsa P.S. Case No.58 of 1999 on an allegation of murdering younger brother of the informant. Since in the present case, the question, which has been raised by the learned counsel for the petitioner, that after submission of chargesheet and exoneration of the petitioner by the Officer Incharge without collecting any material further chargesheet is not permissible, the order of cognizance is bad, it is not necessary to give detail of the allegation 2 levelled against the petitioner. In the case, initially the petitioner along with three other accused persons was named as accused in the F.I.R. Since the petitioner was named accused in the F.I.R. , he was taken in custody during the investigation of the case. Subsequently, the police after collecting materials and completing the investigation submitted chargesheet vide Chargesheet No.45 of 1999 on 11.6.1999 against three accused persons and the petitioner was recommended for his discharge and in the chargesheet it was also requested for issuance of release order in favour of the petitioner. After submission of chargesheet, learned Magistrate took cognizance of offences in respect of three other accused persons, who were forwarded by the police. So far the petitioner is concerned, as per recommendation of the police, learned Magistrate, while discharging, directed for issuance of release order vide its order dated 14.6.1999. After the petitioner was released, a supplementary chargesheet vide Chargesheet No.111 of 1999 on 29.12.1999 against the petitioner was filed. After submission of supplementary chargesheet , the learned Magistrate vide its order dated 1.5.2000 took cognizance of offences and summoned the petitioner to face trial. 3. Aggrieved with the order of cognizance dated 1.5.2000 passed by the learned Addl.Chief Judicial Magistrate, Hilsa, the petitioner approached this Court by filing the present petition. In view of the Judgment cited by learned counsel for the petitioner, reported in 1994 (2) PLJR 96( Jamuna Pathak Vs. The State of Bihar and another), this case was admitted for hearing vide its order dated 15.2.2002. While admitting, it was directed that during the pendency of this application, operation of the order dated 1.5.2000 passed by the Additional Chief 3 Judicial Magistrate, in Hilsa P.S. Case No.58/99, was directed to remain stayed. It was clarified that the order of stay may not be construed to mean that further proceeding in respect of other accused persons has been stayed. However, at the time of hearing of this petition, Sri Rajendra Prasad, learned Senior Counsel appearing on behalf of the petitioner informs the Court that the trial in respect of three other accused persons is still continuing. 4. While challenging the impugned order, Sri Rajendra Prasad, learned Senior Counsel for the petitioner has submitted that firstly, on the basis of materials collected during the investigation the petitioner was exonerated and final form in respect of petitioner was submitted by the police. However, three other accused persons were forwarded to face trial. After submission of the chargesheet/ final report, learned Magistrate, while discharging the petitioner, directed for issuance of release order, since the petitioner was already in custody and thereafter the petitioner was discharged and released from the custody. Subsequently, without collecting any material it appears that only on the direction of Senior Officer, supplementary chargesheet was submitted against the petitioner. It was submitted that under the provision of Section 173 of the Code of Criminal Procedure without collecting further material supplementary chargesheet was not permissible and on the basis of such chargesheet , the learned Magistrate was not required to take cognizance of the offences and accordingly, the order of cognizance is liable to be set aside. Learned Senior Counsel for the petitioner at the time of hearing has heavily relied on a Division Bench Judgment of this Court, reported in 1994 (2) PLJR 4 96 (Jamuna Pathak Vs.State of Bihar & Anr.). In the said case also, after submission of chargesheet without conducting any further investigation or collecting any further materials, supplementary chargesheet was submitted and on the basis of said supplementary chargesheet , cognizance order was passed. Accordingly, this Court was of the opinion that in the eye of law, such supplementary chargesheet was not the supplementary chargesheet in the eye of law and on the basis of such chargesheet, cognizance order was not sustainable and the same was set aside. 5. In the present case, earlier case diary was called for, which has been received. On perusal of the case diary, Smt. Indu Bala Pandey , learned Addl.Public Prosecutor appearing on behalf of the State candidly accepts that during the further investigation, no new material was collected. However, supplementary chargesheet was submitted. It was submitted by Smt. Pandey, learned Addl.Public Prosecutor that even prior to submission of first chargesheet sufficient materials were collected against the petitioner showing his involvement. However, she does not dispute that during further investigation no new material was collected and without any new material supplementary chargesheet was submitted. In view of admitted position that without collecting any further material , supplementary chargesheet was submitted in the present case against the petitioner, the Court has got no option but to quash the order of cognizance dated 1.5.2000, which has been passed on the basis of supplementary chargesheet No.111 of 1999. However, it is made clear that if during the trial, sufficient material is brought on record, it will be open for the trial court to proceed with the case in 5 accordance with the provision contained in Section 319 of the Code of Criminal Procedure. 6. With above observation and direction, the order of cognizance dated 1.5.2000 in Hilsa P.S. Case No.58 of 1999 passed by learned Addl. Chief Judicial Magistrate, Hilsa is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 15th November,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)