Guddu Kumar and Others vs The State of Bihar and Another

Rakesh Kumar, J.—Heard Shri Dhananjay Kumar No. 2, Learned Counsel for the petitioners and Shri Hirday Prasad Singh, learned Additional Public Prosecutor. Three petitioners, while invoking inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 31.5.2010 passed by Shri Ravindra Singh, First Class Judicial Magistrate, Bettiah in Tr. No. 1569 of 2010 arising out of Bariya P.S. Case No. 43 of 2007. By (he said order, as stated by Learned Counsel for the petitioners, the learned Magistrate has taken cognizance of the offence under Sections 323, 341, 337, 324, 504, 307/34 of the Indian Penal Code.

It was submitted by Learned Counsel for the petitioners that though F.I.R. in the case was lodged for the offence u/s 307 and other allied Sections of the Indian Penal Code, during investigation allegation u/s 307 of the Indian Penal Code was not found true and as such charge-sheet under Sections 323, 341, 337, 324, 504/34 of the Indian Penal Code and the learned Magistrate, on receipt of the police report, has passed the order of cognizance under said sections. By order dated 12.7.2007, he submits that being aggrieved with the order of the learned Magistrate whereby the learned Magistrate had not taken cognizance of the offence u/s 307 of the Indian Penal Code, the informant of the case preferred a revision vide Cr. Revision No. 2441 of 2007. However, the revision petition was disposed of on 26.5.2008 with an observation that the informant can take aforesaid pleas at the time of framing of the charge. After the order of the revisional court within few days, the informant filed a petition on 29.5.2008 before the learned Magistrate. Thereafter, reply was also filed by the petitioners and subsequently, by order dated 31.5.2010, the learned Magistrate concluded that it was a case u/s 307/34 besides other sections and since it was a case triable by the Court of Sessions, he passed an order for committing the case.

Aggrieved with the order dated 31.5.2010, the petitioners have approached this Court. Learned Counsel for the petitioners, while assailing the order, submits that once in this case, after submission of charge-sheet, the learned Magistrate had taken cognizance of the offences not u/s 307 of the Indian Penal Code, at subsequent stage, the learned Magistrate was not authorized to take cognizance u/s 307 of the Indian Penal Code. He submits that this power was to be exercised only at the time of framing of the charge not before that. He further argues that in one case, two orders of cognizance were not permissible. He has further pleaded that once the revisional court had already observed for examining the matter at the time of charge, there was no option left with the Magistrate, but to examine the petition of the informant at the stage of charge. On aforesaid ground, he has prayed for quashing of the impugned order.

In this case, the informant in the F.I.R. itself had made categorical statement disclosing commission of offence u/s 307 of the Indian Penal Code. On perusal of the F.I.R., it is evident that allegation was levelled that accused persons had inflicted farsa blow on the head of informant''s side. In the case, more than two or three persons got injuries by farsa blow and other deadly weapons. The F.I.R. was lodged u/s 307 and other allied sections of the Indian Penal Code, but the police, to the reasons best known to it, submitted charge-sheet not u/s 307 of the Indian Penal Code and the learned Magistrate too took cognizance of the offences except Section 307 of the Indian Penal Code as referred in the F.I.R. It further appears that at the time of submission of charge-sheet, opinion on injury of the medical expert was awaited. After order of cognizance, during conducting enquiry, those opinions were brought on record and thereafter, the learned Magistrate has passed order for commitment. Before the court below, it was pleaded on behalf of the defence that at the stage u/s 239 of the Code of Criminal Procedure, the learned Magistrate was required to only emphasize on the police report only.

After going through the impugned order, the court is satisfied that it is not a case of second cognizance. It is evident that while conducting enquiry, the learned Magistrate had come to the conclusion that there was prima facie material for committing offence u/s 307 of the Indian Penal Code and it was triable by the Court of Sessions and as such by the impugned order, the learned Magistrate has passed the order for committing the case to the Court of Sessions. I do not find any defect in the impugned order. Moreover, u/s 323 of the Code of Criminal Procedure, it is bounded duty of the concerned Magistrate that after noticing the case being triable by the Court of Sessions, he should commit the case to the Court of Sessions forthwith.

The petition stands dismissed.

In view of dismissal of this petition, it is desirable to observe for expeditious disposal of the trial, keeping in view the fact that in the case, occurrence had taken place in the year 2007. Let a copy of this order be sent to the court below forthwith.