Jharkhand High Court
Pawan Kumar Sharma vs The State Of Jharkhand on 19 October, 2022
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
----
Cr.M.P. No. 2328 of 2022
----
Pawan Kumar Sharma, aged about 52 years, son of Vidyadhar Sharma,
resident of Aryapuri, Ratu Road, P.O. and P.S. Sukhdeonagar, District-
Ranchi ..... Petitioner
-- Versus --
The State of Jharkhand ...... Opposite Party
----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioner :- Mr. Nilesh Kumar, Advocate
For the State :- Mr.Abhay Kumar Tiwari, Advocate
----
4/19.10.2022 This petition has been filed for quashing of the order dated
22.03.2022 by which protest cum complaint Case No.6003 of 2020
arising out of Bariyatu P.S.Case No.55 of 2019 filed by the petitioner has
been rejected by the learned Judicial Magistrate, 1st Class, XXI, Ranchi.
Mr. Nilesh Kumar, the learned counsel appearing for the
petitioner submits that the charge sheet has been submitted and final
form has been accepted by the learned court by impugned order dated
22.3.2022. He submits that the petition was filed by the petitioner which
was rejected only on the ground that final form has already been
accepted by the learned court.
On the other hand, Mr.Tiwari, the learned counsel
appearing for the respondent State submits that notice was issued and
he has chosen not to appear and thereafter final form was accepted and
the court has rightly rejected the protest petition.
In view of the above facts and the submissions of the
learned counsels appearing on behalf of the parties, the Court has gone
through the materials on record and on perusal of the impugned order
dated 22.3.2022 it transpires that it has been recorded that the notice
has been directed to be issued against the petitioner and notice was
issued on 31.10.2019 and there is no recording in the order sheet that
the notice was served upon the petitioner. Once the petition is filed, the
learned court is required to decide it with regard to Kishore Kumar
Gyanchandani v. G.D.Mehrotra and Another, (2011) 15 SCC 513,
paragraph nos. 5 to 9 of the said judgment are quoted hereinbelow:
"5. When the matter was listed before a two-Judge
Bench of this Court, thinking that there is some divergence
of views, it referred the matter to a three-Judge Bench. On
examining the different provisions of the Code of Criminal
Procedure as well as the decisions of this Court relevant on
the question, we see no divergence in the matter.
6. It is too well settled that when police after
investigation files a final form under Section 173 of the
Code, the Magistrate may disagree with the conclusion
arrived at by the police and take cognizance in exercise of
power under Section 190 of the Code. The Magistrate may
not take cognizance and direct further investigation in the
matter under Section 156 of the Code. Where the
Magistrate accepts the final form submitted by the police,
the right of the complainant to file a regular complaint is
not taken away and in fact on such a complaint being filed
the Magistrate follows the procedure under Section 201 of
the Code and takes cognizance if the materials produced by
the complainant make out an offence. This question has
been raised and answered by this Court in the case
of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha [(1982)
3 SCC 510 : 1983 SCC (Cri) 110] whereunder the view of
the Patna High Court to the contrary has been reversed.
The Court in no uncertain terms in the aforesaid case has
indicated that the acceptance of final form does not debar
the Magistrate from taking cognizance on the basis of the
materials produced in a complaint proceeding.
7. Mr Maheshwari, the learned Senior Counsel
appearing for the respondents, however, relied upon an
earlier decision of this Court in Abhinandan Jha v. Dinesh
Mishra [1968 Cri LJ 97 : AIR 1968 SC 117] . In our view
the said decision is not relevant for the purpose and in that
decision this Court had merely stated that the Magistrate
on receipt of the final form by the police cannot direct the
investigating agency to file a charge-sheet inasmuch as the
filing of charge-sheet is within the domain of the
investigating agency. But the Magistrate has untrammelled
power to direct further investigation into the matter or even
to take cognizance on the basis of the materials produced
even though the police might have filed the final form. The
aforesaid decision, in our considered opinion, is not
relevant on the point in issue.
8. This being the position and on examining the
impugned judgment of the High Court, we have no
hesitation to come to the conclusion that the High Court
wholly erred in law in interfering with the cognizance taken
by the Magistrate in the complaint proceeding, by sifting
the materials and on coming to a conclusion by some
conjectures which the High Court is not entitled to at this
stage of the proceeding.
9. We set aside the impugned order and direct the
Magistrate to proceed with the pending criminal
proceeding as expeditiously as possible. The appeal stands
allowed accordingly."
In view of the above facts and submissions of the learned
counsels for the parties and considering that notice appears to have been
not served upon the petitioner, the final form has been accepted by order
dated 08.02.2020 and in view of the law laid down in the case of Kishore
Kumar Gyanchandani (supra), the impugned order dated 22.03.2022 is
set aside.
The matter is remitted back to the learned concerned court
for passing fresh order in accordance with law.
The petitioner is at liberty to file further petition before the
learned concerned court and the order will be passed in accordance with
law.
With above observation and direction, Cr.M.P. No. 2328 of
2022 stands disposed of.
I.A. if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/
