CRIMINAL MISCELLANEOUS No.6332 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- 1. DINKAR YADAV @ DINKAR PRASAD DIN, SON OF RAMPHAL YADAV, 2. PRABHAKAR YADAV, SON OF SARYUG YADAV, 3. ARUN YADAV, SON OF RAM UDIT YADAV, ALL RESIDENTS OF VILLAGE HANUMAN NAGAR, POLICE STATION- ROSERA, DISTRICT SAMASTIPUR. ... ... PETITIONERS. Versus THE STATE OF BIHAR ... OPPOSITE PARTY. ---- For the Petitioners : Mr. Prasoon Sinha, Adv. For the Informant : M/S Vijay Anand, Adv. T. Sharma, Adv. For the State : Mr. Binod Kumar, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. Three 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 30.1.1999 passed by Additional Chief Judicial Magistrate, Rosera in Rosera P.S. Case No.11 of 1996. By the said order, the learned Magistrate had taken cognizance of offence under Sections 147, 148, 149, 323, 447, 436, 341 and 109 of the Indian Penal Code and transferred the case record to the court of Sri Kamta Prasad, Judicial Magistrate, Ist Class, Rosera for its disposal and directed for issuance of summon against the accused persons including 2 petitioners. 2. Short fact of the case is that on the basis of a written information of the informant, an F.I.R. vide Rosera P.S. Case No.11 of 1996 was registered on 14.1.1996 for the offence under Sections 147, 149, 323, 447, 436/34 and 109 of the Indian Penal Code. The F.I.R. was registered against ten accused persons which include the petitioners. In the F.I.R, it was alleged that Accused Nos.1 to 7 (not petitioners) of the F.I.R. on 14.1.1996 at 11.30 A.M. arrived near the newly built up house of the informant and over the land of the informant, accused persons started to fix pegs. When the informant objected same resulted into scuffle and thereafter, on the order given by petitioner no.1, the house of informant was put on fire and the informant suffered a loss of about Rs.90,000/-. After investigating the case, police submitted charge sheet. However, the learned Chief Judicial Magistrate, after going through the materials available in the case diary came to the conclusion that the Investigating Officer was required to conduct further investigation in the light of direction given by the Sub Divisional Police Officer as well as the Superintendent of Police during 3 supervision which relates to collection of further material against the three petitioners. Accordingly, by an order dated 19.3.1997, the learned Additional Chief Judicial Magistrate directed the Investigating Officer to further investigate the case and, thereafter, submit supplementary charge sheet. Subsequently, in the light of order of the learned Additional Chief Judicial Magistrate, after conducting further investigation and approval from the Superintendent of Police, charge sheet was submitted in the case. By order dated 30.1.1999 i.e. impugned order, the learned Magistrate, on the basis of materials available on record, took cognizance of offence under Sections 147, 148, 149, 323, 447, 436, 341 and 109 of the Indian Penal Code and transferred the case record to the court of Sri Kamta Prasad, Judicial Magistrate, Ist Class, Rosera. 3. Aggrieved with the order of cognizance, the three petitioners approached this Court and on 13.8.1999, while calling for the report from the court below on the point as to whether any supplementary charge sheet was received or not, this Court directed that in the meanwhile, further proceeding as regards petitioners in Rosera P.S. Case No.11 of 1996 4 in the court below (Additional Chief Judicial Magistrate, Rosera) shall remain stayed and thereafter, on 18.9.2000, this case was admitted for hearing. It was directed that during the pendency of this application, interim order dated 13.8.1999 shall continue and order of stay is still continuing. 4. On perusal of the record, it transpires that in compliance with order dated 13.8.1999 passed by this Court, a report was sent by the Incharge, Judicial Magistrate, Sri K.S. Singh ‘Sanger’, Rosera at Samastipur vide letter no.45 datged 8.9.1999. The perusal of report of the concerned Magistrate makes it clear that the Superintendent of Police, Samastipur, in his report contained in Memo No.33391 dated 5.9.1998, had approved the charge sheet No.51 of 1996, which was mentioned in paragraph-10 of the case diary. The Incharge learned Magistrate has clarified that in this case, no supplementary charge sheet was submitted in the court. 5. Shri Prasoon Sinha, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, at the very outset, had submitted that the learned Magistrate, purely in a mechanical manner, has 5 passed the order of cognizance on 30.1.1999. It was submitted that once on the same material, the learned Magistrate, by its order dated 19.3.1997, refusing to take cognizance of offences against the present three petitioners, had directed the Investigating Officer to further investigate the case to ascertain the role of the petitioners in compliance with the direction of the Sub Divisional Police Officer as well as Superintendent of Police given during the supervision of the case, in absence of supplementary charge sheet, the learned Magistrate was not authorized to take cognizance of the offences against the petitioners by its order dated 30.1.1999. It was further submitted that on merit also, there were no material on record to show the involvement of the petitioners. It was submitted that the present case i.e. Rosera P.S. Case No.11 of 1996 was a counter blast to Rosera P.S. Case No.10 of 1996, which was registered on the basis of statement of father of Sheonandan Das, who was made Accused No.2 in Rosera P.S. Case No.11 of 1996. It was submitted that prior to the occurrence of Rosera P.S. Case No.10 of 1996, one of the F.I.R. named accused Sheonandan Das had filed a 6 complaint vide Complaint Case No.15 of 1996 against the informant of the present case, namely, Goli Yadav and others for committing theft and assault. Aggrieved with the filing of the complaint petition by Sheonandan Das, the informant of the present case, namely, Goli Yadav along with accused persons committed offences under Section 436 and other ancillary sections of the Indian Penal Code in an occurrence in which house of Sheonandan Das was set on fire and as such on the statement of father of Sheonandan Das (accused in the present case), an F.I.R. vide Rosera P.S. Case No.10 of 1996 was registered under Section 436 and other ancillary sections of the Indian Penal Code against the present informant, namely, Goli Yadav and others and as such the present informant in collusion with the Police Officer of Rosera Police Station got a false case instituted vide Rosera P.S. Case No.11 of 1996. Though during entire investigation, no material was collected to show involvement of the present three petitioners, the Investigating Officer, in collusion with the informant, filed charge sheet even again the petitioners besides charge sheeting other accused persons. The allegation of malicious 7 prosecution is further corroborated that the Supervising Officers i.e. Sub Divisional Police Officer and Superintendent of Police, Samastipur were not satisfied with the materials collected during investigation in respect of accusation against the petitioners and as such despite they directed the Investigating Officer to further investigate, without further collecting material as well as without sanction/approval of the Superintendent of Police, the Investigating Officer submitted charge sheet even against the petitioners. After filing of the charge sheet, it was the turn of the court and the learned Magistrate was satisfied that there were no material to proceed against these petitioners and as such by an order dated 19.3.1997, the learned Magistrate directed the Investigating Officer to further investigate and submit supplementary charge sheet. Again the Investigating Officer dis-obeyed the direction of the learned Magistrate, which was issued on 19.3.1997 and without getting any approval from the Superintendent of Police in compliance with the judicial order, filed supplementary case diary in the court of Additional Chief Judicial Magistrate, Rosera and the learned Additional 8 Chief Judicial Magistrate in a mechanical manner as well as oblivious with the earlier direction of his predecessor i.e. Shri Banke Bihari Roy, the Additional Chief Judicial Magistrate, passed the impugned order. Accordingly, it was argued by Shri Sinha that the learned Magistrate, in absence of any supplementary charge sheet, was not authorized to pass the order of cognizance. Learned counsel for the petitioners has also relied on a judgment of Hon’ble Supreme Court reported in 2009(9) SCC 129 (Rita Nath Vs. State of West Bengal). While placing paragraph-25 of the judgment of Rita Nath (Supra), learned counsel for the petitioners has submitted that once after submission of charge sheet, the learned Magistrate did not take cognizance of offence against the petitioners, the learned Magistrate was not authorized to direct the Investigating Officer for further investigation of the case. It was argued that the learned Magistrate was either to accept the police report or while differing with the police report, was competent to take cognizance even against the petitioners, but in any event, the direction of the learned Magistrate was un-warranted and un- authorized in respect of further investigation. 9 On the aforesaid ground, the learned counsel for the petitioners has submitted that the order of cognizance is without jurisdiction and accordingly, same is liable to be set aside. 6. In this case, though the informant was not impleaded as party nor there was any such requirement, the informant has entered his appearance through his counsel, namely, Shri Vijay Anand. Learned counsel for the informant has vehemently opposed the prayer of the petitioners and it was submitted that at the stage of cognizance, this Court is not required to interfere that too, by exercising power under Section 482 of the Code of Criminal Procedure. It was further submitted that the learned Magistrate has rightly passed the impugned order. 7. Shri Vinod Kumar, learned Additional Public Prosecutor appearing on behalf of the State has also opposed the prayer of the petitioners. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. So far as the legal question which has been raised by learned counsel for the petitioners that since the learned Magistrate was not authorized to direct 10 further investigation, the subsequent order of cognizance is without jurisdiction, is concerned, I am of the view that such question has got no direct bearing for deciding the issue involved in the present case. The learned Sub Divisional Judicial Magistrate, after filing of the charge sheet, by its order dated 19.3.1997, had directed the Investigating Officer to further investigate the case. The petitioners earlier never challenged the order dated 19.3.1997 passed by Sub Divisional Judicial Magistrate nor even before this Court any pleading has been made for quashing of order dated 19.3.1997 passed by Sub Divisional Judicial Magistrate in Rosera P.S. Case No.11 of 1996. In absence of pleading as well as by efflux of time, learned counsel for the petitioners is not justified to question the jurisdiction of the learned Magistrate for directing further investigation nor this question is required to be answered by this Court at this stage. 9. However, after perusing the materials available on record including the case diary, the court is of the opinion that the proceeding against the petitioners can be categorized as malicious prosecution. Of 11 course, the allegation of malafide cannot be positively decided at this stage, but the circumstances of the present case is sufficient to give an impression in the mind of the court that the proceeding against the petitioners was un-fair and unjust. Prior to the filing of the present case i.e. Rosera P.S. CaseNo.11 of 1996, an F.I.R. was lodged against Goli Yadav, informant of the present case. In the said case, there was an allegation that he along with others put the house of father of one of the accused on fire. After the occurrence of Rosera P.S. Case No.10 of 1996, the complainant of the present case got the F.I.R. in the present case registered vide Rosera P.S. Case No.11 of 1996 with an allegation that his house was put on fire. Even though sufficient materials were not brought on record during the investigation and the Sub Divisional Police Officer as well as the Superintendent of Police, who were the supervising authority, directed the Investigating Officer to collect further material, ignoring the direction of supervisory officer, to the reasons best known to the Investigating Officer, he submitted charge sheet even against the three petitioners. His shows that the Investigating 12 Officer was not proceeding with the investigation in a fair manner. Even after dis- obeyed the direction of the supervisory officers, when the Investigating Officer filed the charge sheet against petitioners, same was examined by the learned Additional Chief Judicial Magistrate. The learned Additional Chief Judicial Magistrate was not satisfied with the materials on record and thereafter, he directed to further collect evidence and after getting approval of the Superintendent of Police, submit supplementary charge sheet. Again dis-obeying the direction of the learned Additional Chief Judicial Magistrate, the Investigating Officer submitted supplementary case diary. However, the successor Additional Chief Judicial Magistrate Shri Abhyanand Choudhary, oblivious with the direction of his predecessor, in a mechanical manner has passed the order of cognizance. 10. In view of the peculiar facts and circumstances of the present case, I am of the opinion that this is a fit case, where inherent jurisdiction can be exercised in favour of the petitioners and, accordingly, the order of cognizance dated 30.1.1999 passed by learned Additional Chief Judicial Magistrate, Rosera in 13 Rosera P.S. Case No.11 of 1996 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 29th July, 2010 N.A.F.R./N.H.