Deo Kumar Rai and Others vs State of Bihar

Madan Mohan Prasad, J.—This is an application u/s 482 of the Code of Criminal Procedure, 1973 (herein after referred to as ''the Code'') for quashing an order by which the Magistrate has taken cognizance of offences u/s 307, 326 and 323 read with Section 34 of the Indian Penal Code and summoned the accused persons.

It appears that a sanha was recorded by the police on the 3rd April, 1976. On the statement of one Bashisath Muni Rai alleging that the petitioners came and started cutting the Mori (water channel) and on Protest assaulted him differently. On this basis, the first information report was drawn up, a case instituted and investigation taken up. After completing investigation, the police submitted final form (loosely called, final report) treating the case to be one of mistake of fact. A protest Petition was filed. It appears, however that thereafter the case was supervised by the sub-Inspector of police and he re-examined the witnesses and on the basis of their statements, he found a prima facie case to have been made out against the accused and, accordingly, the police submitted chargesheet. On receipt thereof, the Magistrate took cognizance of the offences, as stated above. Hence, this application.

Counsel for the petitioners has raised two points before me. Firstly, he has contented that the Magistrate does not appear to have applied his mind at all to the facts of the case before taking cognizance which is a judicial act and the order is bad on that account; secondly, it has been urged that he had no jurisdiction to take cognizance because the police had no jurisdiction in law to hold further investigation and submit a chargesheet after having submitted a "final report" earlier. Both the points are devoid of any substance and must be rejected.

With regard to the first point, it is true that the order by which the Magistate has taken cognizance and summoned the accused persons does not give out reasons in support of it, but no authority has, however, been cited to show that the order by which the magistrate records taking of cognizance must contain the reasons. In the present case cognizance was taken on the 23rd September, 1976. AH the materials, namely, the earlier final form submitted by police (final report), the protest petition and chargesheet submitted (subsequently) were on the records. The Magistrate has taken notice of the fact of submission of the charge sheet and taken cognizance on that basis. It means that the Magistrate was satisfied that he should act by proceeding under the code against the accused persons. It is obvious from the order that on the basis he has summoned the accused persons also and fixed the case for the purpose of determining whether the accused should be committed to the court of session. The mere absence of reason in an order of cognizance, in my view, cannot lead to the conclusion that a Magistrate acts mechanically without applying his mind. It must be born in mind that taking of cognizance u/s 190 of the code means application of the mind by the Magistrate to bundle of facts stated before him with a view to take action under the relevant chapters of the code, namely, Chapters XIV and XV (under new code). It may be mentioned in this connection that when a Magistrate applies his mind to the facts of a case with a view to ordering enquiry or investigation by the police u/s 155 or 156 of the code, it does not amount to taking of cognizance u/s 190 of the code. The point which should be kept in view is that it is the act of application of the mind with certain purpose which is said to be taking of cognizance. The fact of cognizance having been taken need not be recorded in black and white. It may appear from the facts and circumstances of a case, even though it may not be stayed by the Magistrate that he has taken cognizance. In this view of the matter, when the Magistrate is not bound to record in so many words that he has taken cognizance, in my view, it cannot be said that he must record the reasons which led him to take cognizance. The fact as to whether or not cognizance has been taken, has to be gathered from the circumstances of a case and, in this respect, the court has to determine as to whether it appears that the Magistrate has applied his judicial mind or not. The test cannot, therefore, be as to whether he has recorded the reasons for taking cognizance or not. As stated earlier, there is nothing in the present case to show that the Magistrate passed the order without applying his mind. This argument must therefore, be rejected.

With regard to the second point, it has been urged that the police had no jurisdiction to investigate the case further after having submitted a final report earlier. This submission is incorrect in law in view of the provision of Sub-section (8) of Section 173 of the Code which clearly enables the Police to investigate a case further and to obtain further evidence. It will be noticed that even though there was no corresponding provision to this effect in the old code of 1898, it was held in a number of decisions under the old code that the police had power to investigate a case further even after having submitted final form once. It was so held as there was no provision in the Code barring further investigation by police after submission of final form. It is not necessary to refer to them in view of the express provision in the Code

Next it has been urged that if, at all, the police could investigate the case further, it could submit a charge sheet only on some fresh materials gathered and not in absence thereof. In this respect, it may be mentioned that none of the provisions of the Code contained under Chapter XII of the Code except Section 173 is relevant to the point at issue. Section 173 lays down that investigation shall be completed without unnecessary delay and that as soon as it is completed, the police has to make a report in the prescribed form. Therefore, final form has to be submitted on the completion of the investigation, u/s (2) of Section 173, Sub-section (8) of Section 173 however lays down that nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and then upon such investigation, if the officer in charge of the police station obtains further evidence oral or documentary, he has to forward to the Magistrate a further report regarding such evidence in the form prescribed. It will be relevant to refer to some decisions, though in respect of the law obtaining under the old Code, to find out how the point at issue was dealt with and decided them.

I may, in this connection, refer to the two decisions of learned single judge of this court. Firstly, it is an unreported decision of Wasiuddin. J. in case of Ramakant Singh v. The State of Bihar Cr. Misc No. 183 of 1970 and Cr. Rev. No. 191 of 1970.disposed of on 16.3.1971. In this case final report was first submitted by the police, then the investigation was reopened by the order of the Superintendent of Police and even in absence of fresh materials charge sheet was submitted subsequently. The learned Judge held that there was no provision in the Code which imposed any bar on the discretion and power of the police to submit a chargesheet after submission of the final form (final report) The learned judge relied on the decision of S.N.P. Singh, J. (as he then was) in the case of Raghunath Sharma and Others Vs. The State, where also a final report had been submitted first, but under the orders of the Superintendent of Police, charge sheet had been submitted subsequently and the learned Judge had held that the superior police officer had the authority to direct submission of a charge sheet, even though the officer in charge of the Police Station had already submitted the ''final report'' u/s 173 of the Code and that a Magistrate was competent to take cognizance on the basis of subsequent charge sheet. It was also held that there was no bar to the investigation by the police after submission of a final report u/s 173 and further that formation of the opinion on the materials already collected and taking steps for filing of a charge sheet were themselves steps towards the investigation of the case. Wasiuddin, J had also placed reliance on an unreported decision of a Division Bench of this court in the case of State of Bihar v. Sher Bahadur Cr. Rev. 70, 673 and 575 of 1967.disposed of on 2.2.1969 where also similar view was taken. Reliance was also placed by the learned Judge on the decision of the Allahabad High Court in the case of Rama Shanker Vs. The State of Uttar Pradesh, S. N. P. Singh, J. had also relied on this last mentioned decision in the case of Raghu Nath Sharma (supra). It will thus appear that under the old law, the view taken by this court was that the police could hold further investigation and submit a charge sheet even after having submitted earlier a final report even in the absence of fresh material. It was also held that higher police officer could direct charge sheet to be submitted on the basis of his opinion arrived at after such further investigation. In view of the decision of the Supreme Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, . formation of opinion on the materials already collected and taking steps for filing of a chargesheet are also steps towards the investigation of a case.

In the circumstances of this case, the argument of Learned Counsel cannot be accepted for the reason, as I have said earlier, that under Sub-section (8) of Section 173 of the Code of Criminal Procedure, 1973, the police could hold further investigation and submit a report Next the charge sheet submitted itself shows that a superior Police officer had after submission of the final form supervised the case, held further enquiry re-examined witnesses and then submitted the charge sheet. It appears further that fresh materials were also elicited. I may point out in this connection that it appears that in the earlier statements before the police, the witnesses had not spoken about any body assaulting the complainant with a garansa and it was said to be by lathi. In the subsequent further enquiry, they alleged the assault by garansa. In fact, Learned Counsel for the petitioners made a grievance of the fact that the case had been developed by the Prosecution. Whether these witnesses shou Id be relied upon or not is not a point to be decided at this stage. The police had the right to believe them or disbelieve then? and form its opinion on the basis. Having accepted their further statements, it appears that the police submitted charge-sheet, obviously therefore, the charge-sheet was not submited without fresh materials.

9 In view of the aforesaid there does not appear to be any good ground for quashing either the order by which cognizance has been taken or the proceeding arising out of it. This application is accordingly dismissed.