Jharkhand High Court

Barun Kumar Singh vs The State Of Jharkhand on 14 March, 2023

                                            1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr. Revision No. 493 of 2007
                                    ---------

1.Barun Kumar Singh.

2.Santosh Kumar Singh.

     3.Ashok Kumar Singh.                                       ..... Petitioners
                            Versus
     1.The State of Jharkhand.
     2.Sanjay Kumar Sinha.                              .....   Opposite Parties
                                    ---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioners : Mr. Jagannath Singh, Adv.

Mr. Aashish Kumar, Adv.

For the State : Ms. Vandana Bharati, APP

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09/Dated: 14th March, 2023 Heard learned counsel for the parties.

2. This revision application is directed against the order

dated 02.06.2007 passed by learned Chief Judicial

Magistrate, Deoghar in G.R. Case No. 436 of 2005

corresponding to T.R. No. 443 of 2007; arising out of Deoghar

P.S. Case No. 147/2005 dated 12.06.2005 under Sections

341, 342, 323, 348, 352, 379 and 386/34 IPC; whereby the

petition dated 23.03.2007 filed under section 258 Cr. P.C has

been rejected by the learned Chief Judicial Magistrate,

Deoghar.

3. The brief facts of the case are that the petitioners

were made accused on the basis of a written report

submitted by one Sanjay Kumar Sinha-0.P. No. 2 before the

Officer In-charge, Town Police Station, Deoghar for the

alleged offence u/s 341, 342, 323, 348, 352, 379 & 386/34

of the Indian Penal Code against which a petition u/s 258

Cr. P.C. was filed which was rejected by the learned Chief

Judicial Magistrate Deoghar.

Further fact is that a case being Deoghar P.S. Case

No. 147/2005 dated 12.06.2005 U/s 341, 342, 323, 348,

352, 379, 386/34 of the IPC was registered as State Vs.

Ashok Kumar Singh & Ors. The date and time of

occurrence was 12.06.2005 at 9:30AM.

After investigation, a final report being Final Report

NO. 86/2006 dated 06.03.2006 was submitted as 'false'. At

this stage it is pertinent to mention here that the informant

apprehending that since accused persons were powerful as

such, police is not taking action against them so he also

filed a protest-cum-complaint petition on 19.07.2005.

Further fact of the case is that the final form was

received in the office of the Court on 23.03.2006.

Thereafter, notice to the informant was issued fixing the

date as 28.04.2006. On 28.04.2006, the P.O. was

transferred and therefore, again date was fixed on

15.06.2006 by issuing notice to the Informant. On

15.06.2006, the Informant was absent. On 20.07.2006 the

Informant was present but the date was fixed on

30.07.2006 for hearing on protest petition. On

30.07.2006/31.07.2006 the record was placed for hearing,

the Informant was in appearance, and the hearing was

made on protest petition and the case was fixed for

11.08.2006 for orders. On 11.08.2006 the learned Chief

Judicial Magistrate took cognizance of the offence U/s 323

and 342 of the IPC by cancelling the jurisdiction of Gram

panchayat, issuing process against the accused persons.

4. Learned counsel for the petitioners submits that the

legal question falls for consideration before this Court is

that as to what is the power vested with the Court to take

cognizance of the offence under the Code of Criminal

Procedure, 1973. Learned counsel submits that in the

instant case, after the investigation, police had submitted

the final form which was accepted by the learned trial

Court, however, the Court has taken cognizance on the

contents of the case diary which is against the procedure of

Cr.P.C. and referred to chapter XIV of Cr.PC. For brevity,

relevant paragraph is quoted hereinbelow:-

CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

190. Cognizance of offences by Magistrates - (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2) may take cognizance of any offence -

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

Learned counsel contended that a case can be said

to be "instituted" in a Court only when the Court takes

cognizance of the offence alleged therein. An examination of

the provisions of Section 190 makes it clear that a case is

instituted in the Court of a magistrate when the Magistrate

takes cognizance of the fact which constitute such offence.

Under Section 190(1) cognizance of offences can be taken

by the Magistrate in three ways, upon receiving a private

complaint of facts constituting an offence, or upon a police

report of such facts made by any police officer, or upon the

Magistrate's own knowledge or suspicion of such offence

having been committed. Thus, under Section 190(1), a case

is instituted in the Court of a Magistrate when he takes

cognizance of the offence alleged therein either upon

receiving a private complaint of the facts constituting such

offence, or upon a report of such facts made by any police

officer. It is now well settled that when a petition of

complaint is filed before a Magistrate under Section 200 of

the Code, the question whether he can be said to have

taken "cognizance" under Section 190(1) (a) of the offence

alleged in the complaint depends upon the purpose for

which he applies his mind to the complaint. If the

Magistrate applies his mind to the complaint for the

purpose of proceeding with the complaint under the various

provisions of Chapter XVI of the Code, he must be held to

have taken cognizance of the offences mentioned in the

complaint. He submits that in view of the provisions of

Chapter XIV if the Magistrate takes cognizance U/s 190(1)

(a) upon receiving a complaint of facts, he is required to

proceed under Chapter XV and therefore the first

requirement of a Magistrate is to examine the complainant.

He contended that here is the case where the

Magistrate called upon the informant by issuing notice, who

appeared and finally on the protest petition which was filed

on 15.06.2006; hearing on the protest petition took place

on 30.07.2006/31.07.2006 by the learned Chief Judicial

Magistrate and therefore, the only recourse left with the

Magistrate to take cognizance of the offence on the

complaint U/s 190(1) (a) upon receiving the complaint of

facts which constitute such offence; by the method of

Chapter XV and not other way i.e. proceeding with the

complaint U/s 200 of the Cr. P.C. and no other way.

He contended that in the present case though the

Magistrate has heard the Informant-Complainant on

protest petition but without proceeding with the case under

Chapter XV of the Cr. P.C. the cognizance of the offence

U/s 323 and 342 of the IPC was taken on 11.08.2006 on

the basis of the materials available in the case diary and

not after examination of the complainant. He further

submits that now the law has been settled in this regard by

different High Courts and Hon'ble Supreme Court in the

case of R.R. Chari versus the State of Uttar Pradesh on

19th March, 1951 reported in AIR 1951 SC 207, Jamuna

Singh & Ors. Vs. Bhadai Sah AIR 1965 SC 1541, Mahesh

Chand Vs. B. Janardan Reddy AIR 2003 Supreme 702,

Pramatha Nath Talukdar Vs. Saroj Ranjan Sarkar, AIR

1958 Ori. Page 11 Orisa High Court in the case of Mahavir

Prasad Agrawal and Anr versus the State of Orisa decided

on 20.08.1957.

He lastly submits that in this case the genesis of the

occurrence is also against the informant, inasmuch as, an

FIR was instituted against the Informant Sanjay Kumar

Sinha and Vinay Kumar Sinha being Deoghar P.S. Case No.

162/2005 dated 25.06.2005 U/s 447, 427, 379, 511/34 of

the IPC (Annexure - 3) to the present case on the basis of

an application filed by the Circle Officer, Deoghar namely

Ravi Shankar Vidyarthi dated 24.06.2005 with respect to

the land being "Gochar" on the basis of the report of the

Halka Karmchari- Shri Suresh Chandra Mandal. The case

was investigated by the Deoghar Police and a charge-sheet

was submitted against the informant and Vinay Kumar

Sinha being Chargesheet No. 52/2006 dated 20.02.2006

U/s 447, 427, 379, 511/34 of the IPC and accordingly the

charges were framed against them (Annexure - 3 Series to

the Revision petition). Therefore, no case can be said to be

made out against the petitioners and the cognizance taken

by the Ld. Magistrate is contrary to the provisions of settled

principles of law.

5. Learned Addl. P.P. submits that there is no error in

the finding given by the learned court below, as such, the

order cannot be set aside. She further relied upon the

judgment passed in the case India Carat (P) Ltd. Versus

State of Karnataka and another, reported in (1989) 2

SCC 132, wherein the Hon'ble Apex Court has held that

despite police report that no case is made out against the

accused, Magistrate can take cognizance of offences under

section 190(1) (b) taking into account the statement of

witness made under police investigation and issue process.

6. Having heard learned counsel for the parties and

after going through the impugned order including the

evidence available on record, it clearly transpires that the

submission made by the learned counsel for the petitioner

that after the investigation police had submitted the final

form and the same was accepted by the learned Court

below is not correct, inasmuch as, from the order of

cognizance dated 11.08.2006 it clearly transpires that by

rejecting the final report, the learned court below has taken

cognizance on the basis of material available in the case

diary and found prima facie case under Sections 323 and

342 IPC against all the three accused persons. For better

appreciation operative paragraph of the order of cognizance

is quoted hereinbelow:

esjs fopkj ls vfHk;qDrx.k ds fo:} HkkÛ nÛ foÛ dh /kkjk&342 ,oa 323 ds varxZr vijk/k dkfjr djus dk izFke n`'V~;k ekeyk curk gS rFkk vuqala/kkudrkZ }kjk nkf[ky F.R [email protected] fnukad&16-03-06 ¼vafre izfrosnu½ dks ÞvlR;Þ vLohd`r djrs gq, HkkÛ nÛ foÛ dh /kkjk&323,oa 342 ds varxZr xkze iapk;r dk {ks=kf/kdkj dks fujLr djrs gq, vijk/k dk laKku fy;k tkrk gSA

7. Learned counsel for the petitioner submitted before

this Court that the cognizance is bad in law in view of

Section 190 (b) of the Cr. P.C., as after completion of the

investigation police submitted the final report, which was

accepted by the learned trial court and thereafter protest

cum complaint petition was filed by the informant on

20.07.2006 and thereupon the trial court vide order dated

11.08.2006 has taken cognizance of the offences on the

complaint-cum-protest petition which is not in accordance

with law. He also submitted that when the final report was

accepted by the learned trial court then it cannot take

cognizance on the basis of material collected during

investigation or the case diary. He also contended that the

order of cognizance, which the court has passed relying

upon the case diary is bad and cannot be allowed to

sustain.

These submissions of the petitioners cannot be

accepted in view of the fact that after going through the

order referred to in para-6 hereinabove it clearly transpires

that by rejecting the final report filed by the police, learned

trial court has found enough material to make out the

prima facie case against all the accused persons.

Today during course of hearing learned counsel for

the petitioners draws attention of this court towards order

dated 11.08.2006 and submits that order start with the

sentence 'the said order being passed on protest petition';

this itself shows that court below has accepted the final

report. In this regard relevant part of the order quoted

hereinbelow:-

orZeku ekeyk lwpd lat; dqekj flUgk ds fojks/k i= ij vk/kfjr gSA vfHkys[k dk voyksdu fd;k] ftlls fofnr gksrk gS fd lat; dqekj flUgk ¿lwpdÀ us fyf[kr izfrosnu ds vk/kkj ij nso?kj Fkkuk dkaM la0&[email protected] vfHk;qDrx.k] v"kksd dqekj flag + + + + vuql/a kkudrkZ us vuql/a kku ds i"pkr~ vafre fjiksVZ la0&[email protected] fnukad& 16‐3‐06 ds ek/;e ls vlR; lefiZr fd;k tks U;k;ky; esa fnukad 23‐3‐06 dks izkIr gqvk ,oa lwpd dks uksfVl fuxZr djus dk vkns"k fn;k x;k A lwpd fnukad&20‐7‐06 dks mifLFkr gq, rFkk fnukad&19‐7‐05 dks fojks/k lg ifjokn i= dks izpkfyr fd;sA

9. At this stage it is also relevant to refer few

paragraphs of the protest petition which was filed much

before the filing of final form. For brevity para 9 and 10 are

quoted hereinbelow:-

"9. That inspite of the institution of the F.I.R. being Town P.S. Case No. 147 of 2005 State Versus Ashok Kumar Singh and others, against all the accused persons under sections 341, 342, 323, 384, 352, 379, 386/34 IPC. The police has not taken any step

to arrest the accused persons.

10.That the accused no.1 is a member of Jharkhand Administrative Service who is a most influential and monied man. So the complainant has reasonable apprehension that the police at the collusion of the accused persons, may submits final instead of chargesheet, hence this protest cum complaint petition is filed in your Honour's court."

From the above paragraphs and also from the fact of

the case it transpires that on apprehension of the informant

a protest petition was filed which was kept on record.

However, after receiving final report in order to give

opportunity of hearing to both the parties and after

rejecting final report, learned Magistrate took cognizance in

the matter after relying the content of case diary which is in

accordance with law. In this regard reference can be made

to the order passed by the Hon'ble Apex Court in the case of

Gangadhar Janardan Mhatre v. State of Maharashtra,

reported in (2004) 7 SCC 768 wherein it has been

categorically held 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

and 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, exercise his powers

under Section 190(1)(b) and direct the issue of process to

the accused. The relevant para is quoted herein below;

"9. ...... The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e. (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). 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 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, exercise 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........"

Thus, it can be safely opined that since the protest

cum complaint petition was filed on 19.07.2005, was pre-

mature petition as it was filed before the final report and

that is the reason it was not entertained by the learned trial

court and the argument of learned counsel for the

petitioner that the complaint cum protest petition was filed

on 20.07.2006 is not correct.

10. In view of the aforesaid discussions and after going

through the impugned order and documents available on

record, this Court holds that the court below has not

committed any error in rejecting the petition filed under

section 258 Cr. P.C. The petitioner has failed to point out

any illegality in the order taking cognizance, as such no

interference is required and the instant application is

rejected. The learned trial court is directed to proceed in the

matter in accordance with law. It goes without saying that

since the matter is very old, as such the trial be completed

at an early date preferably within a period of 9 months from

the date of receipt of copy of this order/LCR.