Awadhesh Thakur vs State of Jharkhand

Prashant Kumar, J.—This application has been filed for quashing the order dated 17.08.2013 passed by Judicial Magistrate, Seraikella in G.R. No. 765 of 2012 (Adityapur (R.I.T.) P.S. Case No. 217 of 2012), whereby and where-under the learned Magistrate took cognizance against the petitioners for the offences under Sections 341 , 323 , 324 , 326 , 307 , 506 /34 of the I.P.C. and issued summons to the accused persons named in the charge-sheet. It is submitted by Sri P.S.A.S. Pati, learned counsel for the petitioners that in the instant case, the police submitted charge-sheet against the petitioners under Sections 341 , 323 , 324 , 326 , 506 /34 of the I.P.C., but the learned Magistrate had taken cognizance against the petitioners for the offences under Sections 341 , 323 , 324 , 326 , 307 , 506 /34 of the I.P.C., which is illegal, therefore cannot be sustained.

Sri Pati relied upon a judgment of Hon''ble Supreme Court in State of Gujarat Vs. Girish Radhakrishnan Varde, in support of his contention.

On the other hand, J.C. to G.P.-III submits that in view of the judgment of Hon''ble Supreme Court in Dharam Pal and Others Vs. State of Haryana and Another, , a Magistrate has ample power to disagree with police report. Thus, the Magistrate can take cognizance of an offence for which the police has not submitted any report. He submits that the judgment of the Constitution Bench in Dharam Pal''s case (supra) has not been considered in State of Gujarat Vs. Girish Radhakrishnan Varde, . Learned counsel further submits that even in Hardeep Singh Vs. State of Punjab and Others etc. etc., , another Constitution Bench of the Hon''ble Supreme Court has affirmed the findings of the earlier Constitution Bench given in Dharam Pal''s case (supra). Accordingly, it is submitted that there is no illegality in the impugned order.

Having heard the submissions, I have gone through the record of the case. Admittedly, in the instant case, F.I.R. bearing Adityapur (R.I.T.) P.S. Case No. 217 of 2012 instituted under Sections 341 , 323 , 324 , 326 , 307 , 506 /34 of the I.P.C. It is alleged in the F.I.R. that the accused persons assaulted informant, his father and grandfather. It appears from the impugned order that the informant had sustained sharp cutting injuries on his parietal region and ear. Whereas, his father has sustained sharp cutting injuries on his scapular region and his grandfather had sustained sharp cutting injuries on his finger and forearm. It appears that the police after investigation has submitted charge-sheet against the accused persons only under Sections 341 , 323 , 324 , 326 , 506 /34 of the I.P.C.

Learned Magistrate, after receiving the charge-sheet had perused the case diary and findings of the investigation officer at paragraph No. 24 of the case diary, and concluded that in the instant case sharp cutting weapons have been used for committing assault. The Magistrate also finds that the accused persons had repeated the blow and caused injuries on the vital part of the body of injured persons. Considering the aforesaid facts and circumstances, the learned Magistrate has finally come to the conclusion that prima facie offence under Section 307 of the I.P.C. is also made out against the accused persons, therefore, the learned Magistrate disagreed with the police report and took cognizance of the offence under Sections 341 , 323 , 324 , 326 , 307 , 506 , 34 of the I.P.C.

In Dharam Pal and Others Vs. State of Haryana and Another, , it has been categorically held that the Magistrate has power to disagree with the police report filed under Section 173(2) , Cr.P.C. The aforesaid Constitution Bench judgment of the Hon''ble Supreme Court was again considered and approved by the Hon''ble Supreme Court in Hardeep Singh Vs. State of Punjab and Others etc. etc., . It is worth mentioning that in State of Gujarat Vs. Girish Radhakrishnan Varde, , the aforesaid Constitution Bench judgment of the Hon''ble Supreme Court rendered in Dharam Pal''s case (supra) has not been considered. Thus, in view of the judgment of the Constitution Bench of the Hon''ble Supreme Court, I find no illegality in the impugned order. Accordingly, I find no merit in this writ application, the same is accordingly dismissed.