Lal Babu Singh @ Lal Babu Rai and 17 Others vs The State of Bihar and Another

Anand Prasad Sinha, J.—This application is directed against the order dated 25.1.1982 passed in C.R. Case No. 2472 of 1979 by which cognizance has been taken for the offence punishable under sections 147, 149, 435 and 436 of the Indian Penal Code and processes have been issued against the petitioners. The facts stated briefly are as follows:--

A case has been instituted on the basis of a FarJbeyan lodged by opposite party No. 2 giving rise to Begusarai P.S. Case No. 17(11)79 on 18.11.1979 for the offences under sections 147, 149, 435 and 436 of the Indian Penal Code naming the petitioners as accused parsons. After investigation, the police had submitted final report on 5.12.1979 which had been forwarded to the learned Chief Judicial Magistrate, Begusarai on 10.12.1979. However, opposite party No. 2 had filed a protest-cum-complaint petition on 13.11.1979. The learned Chief Judicial Magistrate on 11.12.1979 had directed the protest petition to be put up on receipt of the final report. The next date fixed in the case was 1.1.1980. On that date a petition dated 26.12.1979 filed by the Officer Incharge, Begusarai police station had been placed in which it had been stated that final report had been filed showing the subject matter involved in the case as civil dispute, but the Superintendent of police had ordered that the Deputy Superintendent of police would supervise the case and that being so a prayer had been made that the final report may be kept pending.

It appears on this petition, the learned Chief Judicial Magistrate had passed orders that the Officer Incharge of Begusarai police station will not file the final report and no orders will be passed on it. The final report was received on 9.5.1980 in the court of the Chief Judicial Magistrate, Begusarai. Thereafter, on the next a few adjourned dates it was observed that the informant did not take any step although some accused persons were present and some were present through lawyers. Ultimately, on 15.7.1980 the final report had been accepted mainly on the ground that the informant did not take any step. The accused persons were discharged from the liability of the bail bond. Further, the learned Chief Judicial Magistrate ordered that there would be no order on the petition of protest.

After about one year on 25.9.1981 the informant had filed an application stating therein that the Superintendent of police had ordered to submit chargesheet in the case and thus a prayer had also been made that the records be called for from the record room and cognizance be taken. The concerned court ordered for recalling of the case record. As a matter of fact, a supplementary chargesheet had been submitted by the Officer Incharge, Begusarai on 27.1.1981 naming the petitioners as accused persons for the offences under sections 147, 149, 435, 436 and 511 of the Indian Penal Code. On the basis of the supplementary chargesheet the impugned order taking cognizance against the petitioners has been passed.

Learned counsel appearing on behalf of the petitioners has raised the following points:

(i) When the petitioners have been discharged, no cognizance could have been taken against them.

(ii) The impugned order will amount to reviewing the earlier order by which the final report had been accepted and there being no power for review the impugned order could not have been passed;

(iii) The cognizance was not legal because, in the facts and circumstances of the case, the supplementary chargesheet could not have been the basis for taking cognizance.

I find no merit in either of the contentions. Firstly, I could like to take up as to whether the petitioners have been discharged in the manner that they could not have been put on trial by the impugned order. It will appear that there is no provision in the Code of Criminal Procedure (hereinafter to be referred to as the Code) specifically and definitely stating any provision for acceptance of also called "final report". The relevant provision in the Code is that after submission of the police report, as contemplated u/s 173 of the Code, cognizance may be taken under the provisions of section 190 of the Code and thereafter issue of process. There being no pro-vision for acceptance of so called final report, no statutory or legal impediment spring up from issue of processes or taking of cognizance of any offence later, when at the first instance there has been no order for taking cognizance and also for issue of processes. Moreover, as stated above, the petitioners were discharged from the liability of the bail bond and that will not amount to any discharge what-so-ever and there could not be any occasion also for that and thus, that cannot be equated with the concept of discharge as contemplated u/s 227 and 245 of the Code.

The concept of review, as put forward on behalf of the petitioners, is not at all correct. There is definite provision laid down u/s 173(8) of the Code for submission of supplementary police report popularly known as supplementary "charge-sheet". That being so, any situation or any occasion for taking action, as contemplated u/s 173(8) of the Code, will only arise when earlier a police report had already been submitted u/s 173(1)(2) of the Code. If that be, any order passed after submission of the supplementary chargesheet will be deemed to be a fresh order altogether quite independent of any earlier order u/s 173(2) of the Code and there could not be any nexus in between the provisions affecting each other in any manner what so-ever.

As regards to the 3rd contention, as discussed above, a supplementary chargesheet is permissible in law. In the facts of this case, it will appear that the Officer Incharge had already filed an application that further investigation had been ordered by the superior police officer and thus no action may be taken on the final report already submitted. From the facts, stated above, it would appear that the final report filed earlier had been disposed of purely on the ground that the complainant did not take any step whatsoever. When the matter was in between the Investigating Officer and the court and the facts disclosed a cognizable case, there was nothing for the complainant to say into the matter excepting that he had to support the protest-cum-complaint petit on. It would appear that the protest cum complaint petition had not been disposed of on 15.7.1980; rather the order was that no order would be passed on the petition of protest when the final report had been accepted. I have no hesitation in saying that the learned Magistrate had acted in haste and he ought to have called for a report from the police with regard to the fact as to Whether any further investigation had been done in the matter or not.

A. case reported i.e. Deo Kumar Rai and Others Vs. State of Bihar, exactly having similar facts has laid down that after submission of the final report investigation can be done as contemplated u/s 173-(8) of the Code and thereafter on the basis of the chargesheet, the Magistrate has jurisdiction to take cognizance on the basis of such chargesheet. A decision in the case of Resham Lal Yadav and Others Vs. The State of Bihar, relied upon by the petitioners have no application to the facts of this case at all. It would appear from the impugned order that the supplementary chargesheet had been submitted after further investigation and there was an occasion for taking cognizance as there scened to the learned Magistrate sufficient ground for proceeding against the accused persons. In the cited decisions, it has been held that the supplementary chargesheet cannot be submitted without further investigation and without obtaining further evidence. As seated just above, the impugned order has been passed after further investigation and there being sufficient evidence in support of the chargesheet.

In the facts and circumstances of the case, it would appear that after proper consideration of the entire case, the Superintendent of police had directed for further investigation add, as a matter of fact, further investigation had been made effectively which would be supported by the observation of the learned Magistrate in the impugned order that he was satisfied that there were sufficient ground for proceeding against the petitioners. Neither further investigation nor the submission of the chargesheet has been done without any basis or cannot be said to have been done mechanically; rather both have occurred on account of extra ordinary situation that there was an occasion for further investigation resulting into submission of the chargesheet. In the result. I do not find any merit in this application which fails and is dismissed.