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M.Y. Eqbal, J.—By this application u/s 482 of the Cr.P.C., the petitioner has prayed for quashing the entire criminal proceedings including the order dated 23.1.2.006 passed by Chief Judicial Magistrate, Dhanbad in G.R. Case No. 4219 of 2005 whereby cognizance for the offence u/s 302 I.P.C. and 27 of the Arms Act was taken against the petitioners on the basis of protest petition filed by the informant.
The aforesaid G.R. Case No. 4219 of 2005 arose out of Topchanchi PS Case No. 160 of 2005 on the basis of F.I.R. lodged by the informant stating inter alia that the night guard of the petrol pump had come to his house and asked him to follow him to the petrol pump. Accordingly, the informant came to the petrol pump and found his elder son Washim Hussain lying dead since one Rinku Singh had fired shot at him causing his death The cause of occurrence as stated by the informant is that before the S.T.D. Booth of the informant, there was already a S.T.D. Booth of Rajak Mian and the petitioners forbid the informant to open S.T.D. Booth. The informant suspected hands of the petitioners behind the murder of his son. The police took up investigation and submitted charge-sheet against one Rakesh Kumar Singh alias Rinku Singh and submitted final form against the petitioners. The Chief Judicial Magistrate, however, in terms of impugned order tool; cognizance of the offence u/s 302 I.P.C. and 27 of the Arms Act against these petitioners also.
Mr. B.M. Tripathi, learned Sr. Counsel appearing for the petitioners, assailed the impugned order as being illegal and wholly without jurisdiction. According to learned Counsel, the Court below could not have taken cognizance of the offence after submission of final form against the petitioners without holding fresh inquiry in accordance with law. According to the learned Counsel, the only course open to the trial Court was to issue notice u/s 319 Cr.P.C. after complicity of the petitioners to come in surface after examining the witnesses in course of the trial. In this context the learned Counsel relied upon the decision of the Supreme Court in the case of the Kishori Singh and Ors. v. State of Bihar and Anr. (2004) 13 S.C.C 11 and in the case of Ram Sanjiwan Singh and Others Vs. State of Bihar, .
Mr. Jai Prakash, learned Sr. Counsel appearing for the informant, on the other hand, submitted that the Court below has not committed any error of law in taking cognizance for the offence against these petitioners also after perusing police report and the case diary. Learned Counsel relied upon the decision of the Supreme Court in the case of H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), and in the case of India Carat Pvt. Ltd. Vs. State of Karnataka and Another, .
Before appreciating the contentions of the parties, 1 would like to refer Section 173 of the Cr.P.C. which deals with the procedure and the power of the Magistrate on completion of investigation and submission of investigation report. It is well settled that on the said police report u/s 173(2) Cr.P.C., the Magistrate has three options. He may take a decision that there is no sufficient ground for proceeding further in matter or he may take cognizance of the offence u/s 190(1)(b) Cr.P.C. on the basis of the police report and issue process and lastly., he may direct further investigation u/s 156(3) and direct the police to make further report. The law has been well settled by the Supreme Court in the case of Sanjay Bansal v. Jawaharlal Vats (2007) 13 S.C.C. 71. Their Lordship observed:
When a report forwarded by the police to the. Magistrate u/s 173(2) (i) is placed before him several situations arise. The report may conclude that an offence appears to have been commuted by a particular person or persons and in such a case, the Magistrate may either (I) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may, direct further investigation u/s 156(3) and require (he police to make a further report. 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 u/s 156(3). The position is, therefore, now well settled that upon receipt of a police report u/s 173(2) a Magistrate is entitled to take cognizance of an offence u/s 190fl)(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 u/s 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 u/s 190(1) (a) though it is open to him to act u/s 200 or Section 202 also. [See India Carat (P) Ltd. v. State of Karnataka.] The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first'' information report lodged becomes wholly or partially ineffective. Therefore, (his Court indicated in Bhagwant Singh case that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard.
In the instant case, as noticed above, the Chief Judicial Magistrate after submission of the charge-sheet and case diary by the Investigating Officer passed the impugned order which is quoted herein below:
The case record has been put up before me alongwith the charge sheet and case diary submitted by I.O. on 19.1.06. the time petition for filing protest filed on behalf of informant on 20.1.06 has been pressed and on the other hand a petition u/s 167(2) Cr.P.C. has been filed on behalf of petitioner Raju Singh Marwah which has also been pressed.
Heard both the parties and also perused the case record.
It appears that I.O. has submitted charge sheet u/s 302 IPC and 27 Arms Act against accused Rajesh Kumar Singh @ Rinku Singh and accusation against rest two accused persons namely 1. Hardeo Singh Marwah and 2. Raju Singh Marwah has been found as not true by the I.O. of this case, but after going through the case record and case diary it appears that the informant who is the father of deceased, was running his STD booth near the Petrol pump of accused Hardeo Singh Marwah and his son Raju Singh Marwah and prior to the occurrence, the informant was continuously threatened by them to close his STD booth otherwise he would have to face consequence. It also appears that accused 1. Hardeo Singh Marwah and 2. Raju Singh Marwah were also well known to the fact of keeping the arms in their petrol pump. It has also come in the case diary that accused Rakesh Kumar Singh @ Rinku Singh was known as their muscle man and as such the involvement of these accused person in this occurrence cannot be denied.
Considering the aforesaid facts and circumstances and keeping in view of para No. 5, 9, 11, 23, 2, 24, 34, 63, 77 and 78 of the case diary, it reveals that adequate material is available on the case record as well the case diary to proceed against accused 1. Hardeo Singh Marwah and 2. Raju Singh Marwah also and as such a prima facie case u/s 302 I.P.C. and 27, 35 Arms Act is made out against accused 1. Rakesh Kumar Singh @ Rinku Singh 2. Hardeo Singh Marwah and 3. Raju Singh Marwah.
Accordingly, cognizance of offence us 302 IPC and 27 Arms Act is taken against accused 1. Rakesh Kumar Singh @ Rinku Singh 2. Hardeo Singh Marwah and 2. Raju Singh Marwah is taken and this case record is transferred to the court of Sri S.K. Singh, JM. Dhanbad for commitment after compliance of provisions u/s 207 Cr.P.C in accordance with law. Accused Rakesh Kumar Singh, @ Rinku Singh and Raju Singh Marwah are in custody, hence, they are remanded u/s 309 (2) Cr.P.C to be produced on the date fixed. I.e. 31.01.2006. Accused Hardeo Singh Marwah has not appeared on the judicial record has yet. Hence, issue, fresh w/A against his and put up on the date fixed for appearance.
Accordingly the bail petition filed on behalf of accused Raju Singh Marwah u/s 167 (2) Cr.P.C and moved today stands disposed of as it is pre-matured one accused has surrendered on 27.10.2005.
In my considered opinion, learned Chief Judicial Magistrate has correctly applied the procedure provided in. the Code of Criminal Procedure. The contention of Mr. Tripathi that the only course open is to proceed u/s 319 Cr.P.C. at the trial stage. At this stage, the Magistrate has no absolute power and jurisdiction to differ with the report of the police officer and record a finding with regard to prima facie case against any of the accused named in the F.I.R.
For the reasons aforesaid, I do not find any error in the impugned order passed by the Chief judicial Magistrate. This application is, accordingly, dismissed.