Dilmu and Another vs State of Himachal Pradesh

H.C.P. Tripathi, J.—This is a reference made by the learned Sessions Judge, Simla, with a recommendation that that part of the order of the Subdivisional Magistrate, dated 28-4-1973 in which the Magistrate has directed the police to investigate the case afresh and then to put up in the Court and also that Dilmu and Bhagju be prosecuted separately u/s 351 (2) of the Criminal Procedure Code be quashed as illegal.

I have heard the learned Counsel for the petitioners and the learned Advocate-General for the State. I have also carefully perused the referring order of the learned Sessions Judge.

The learned Sessions Judge has written a well-considered and detailed order giving cogent reasons in support of his reference. It is not necessary to recapitulate those reasons.

For the detailed reasons given by the learned Sessions Judge in his order of reference I am satisfied that although the Magistrate was quite competent to pass an order u/s 351 of the Criminal Procedure Code detaining the petitioners for the purpose of enquiry into the offence before him he had no jurisdiction to direct the police to investigate afresh the offence of which he had already taken the cognizance and then to put up the result of their investigation again before him, because such a direction, in the circumstances of this case, was tantamount to a direction to submit charge-sheet against Dilmu and Bhagju. The inquiry Magistrate had no jurisdiction also to direct that the Cases, if any, against the two petitioners shall be enquired into separately from others. In the case of Raghubans Dubey Vs. State of Bihar, it was held that:

Once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.

Again in the case of State Vs. Lekh Raj Faqir Chand and Others, it was held by a learned single Judge of the Punjab High Court that:

Once an order is made u/s 351 the person against whom that order is made becomes an accused at the trial of that very case in which the order is made. All that is required is that proceeding will have to commence afresh and witnesses reheard so that the aforesaid person may not suffer because of any proceedings taken in his absence and before he is arraigned as an accused. It is not, however, the object of the law that the aforesaid person should have a trial separate from the one in which the order against him is made.

In the case of Abhinandan Jha and Others Vs. Dinesh Mishra, it was inter alia observed as follows:

The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.

Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report u/s 169 of the Code, that there is no case made out for sending up an accused for trial.

In the result I accept the reference and quash the impugned portions as indicated above of the order of the Magistrate, dated 28th April, 1973.