Meena Kumari @ Meena Devi vs The State of Bihar

I.P. Singh, J.—This is an application u/s 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 21.5.2004 passed by Shri R.D. Sah, Chief Judicial Magistrate, Madhubani in G.R. No. 61 of 2002 (Basopatti P.S. Case No. 3 of 2002) whereby and whereunder the learned Magistrate found a prima facie case against the present petitioner and directed for issuance of non-bailable warrant of arrest against her. It appears that on the basis of the Fardbeyan of one Bikram Kumar Jha (who died on the very next date) Basopatti P.S. Case No. 3 of 2002 was recorded on 13.1.2002 on the basis of which the F.I.R. was drawn up. As per this F.I.R. 8 persons were named as accused in the case. The police took up the investigation and submitted charge sheet No. 21 of 2002 dated 13.4.2002 only against two persons. The investigation, however, proceeded and subsequently a supplementary charge sheet No. 42 of 2002 dated 9.7.2002 was submitted against four other persons. Thus the total number of persons against whom the charge sheets were submitted came to six. With respect to the remaining two, the investigation further proceeded and by final report No. 87 of 2003 dated 28.10.2003 the police finding that no case against the present petitioner and one Santosh Kumar Jha alias Shanker Jha was made out did not sent up their names for trial. It is important to mention here in this connection that the original informant Bikram Kumar Jha died one day after the alleged occurrence, namely, on 14.4.2002 allegedly due to the injuries sustained by him and, therefore, Section 302 of the Indian Penal Code was added in the offences alleged in the F.I.R. The Superintendent of Police and Range Inspector of Police Darbhanga also supervised the investigation. Session Trial No. 319 of 2002 was commenced against six persons in the court of the 2nd Addl. Sessions Judge, Madhubani. Since the present petitioner and one more was not sent up for trial by the police they were not made accused in the said sessions trial which proceeded only against six persons. However, before the learned Addl. Sessions Judge a petition was filed u/s 319 of the Code for putting them on trial. This petition was rejected by the learned Addl. Sessions Judge vide order dated 28.6.2003.

Smt. Gayatri Devi the mother of the original informant Bikram Kumar Jha (since deceased) filed a protest petition before the learned Chief Judicial Magistrate, Madhubani who by the impugned order was pleased to take cognizance also against them including the present petitioner. The learned Chief Judicial Magistrate had gone beyond his jurisdiction in taking cognizance of the offence against the petitioner and another. The learned Magistrate missed to take into consideration the fact that session trial was already proceeding against six accused persons of this case and the petition filed u/s 319 of the Code for impleading the present petitioner and another was rejected by the learned trial court. As such it was not within the competence of the learned Chief Judicial Magistrate to lake cognizance of the offence against the present petitioner and another and on this ground also the impugned order is bad. On these grounds, amongst others, it has been prayed that the impugned order be set aside and quashed.

A supplementary affidavit has also been filed on behalf of the petitioner by her brother in which it has been stated that against the order dated 28.6.2003 passed by the learned Addl. Sessions Judge u/s 319 of the Code a quashing petition was filed before this Court (Cr. Misc. No. 27885 of 2003) but the same has also been dismissed vide order dated 6.10.2004 (Annexure-7). In this case also the petitioner was opposite party No. 3.

I have heard the parties in detail on various questions of law involved. The first point urged on behalf of the petitioner was that since the charge sheet was already submitted on which the cognizance was taken and also since the trial of six accused was proceeding before the learned Addl. Sessions Judge, the Chief Judicial Magistrate had no authority under law to pass the impugned order issuing process against the present petitioner and another. It was submitted that after taking cognizance of the offence and after committing the case to the court of session for trial the learned Chief Judicial Magistrate had become functus officio and had no authority under law to issue process against the present petitioner and another. This submission made on behalf of the petitioner has been seriously challenged on behalf of the opposite party and, therefore, it has been necessary for him to examine the respective submissions made before him in detail.

The important question for consideration under the facts and circumstances of this case would be whether the Magistrate taking cognizance of the offence had any authority in law to go beyond the charge sheet submitted by the police and to summon additional accused who were not sent up for trial. In this connection a reference may be made to the case of Raghubans Dubey Vs. State of Bihar, . In this decision it was observed as follows:--

"In our opinion, 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. As pointed out by this Court in Pravin Chandra Mody Vs. State of Andhra Pradesh, , the term "complaint" would include allegations made against persons unknown."

From this decision it becomes clear that under law there is no limitation put on the powers of the Magistrate while taking cognizance of the offence and it is open to him to take cognizance of the offence even against such persons who have not been sent up for trial by the police. In this connection I would like to refer to a Special Bench decision of this Court in the case of Kuli Singh and Others Vs. The State of Bihar and Others, . In this decision it has been held that upon receiving a report u/s 173 a Magistrate has full jurisdiction to differ with the conclusions of the police and direct that accused not named in the report or not sent up should also be put on trial. This exercise of jurisdiction must be in terms of Section 190(1)(b) which empowers a Magistrate to differ with the police report be it a charge sheet or be it a final report. Upon receiving a report u/s 173 of the Code which is a final report a Magistrate has full jurisdiction to differ with the conclusions of the police and to direct that the accused not sent up for trial should also be put on trial. From this decision also it becomes clear that the final authority in a situation like this is the Magistrate taking cognizance of the offence and not the police which has submitted the final form.

In this connection a reference may also be made to the Full Bench decision of this Court in the case of Sk. Latfur Rahman and Ors. vs. The State (1985 P.L.J.R. 640 (F.B.). In this decision also it was held that taking cognizance will mean cognizance of offence and not of the offenders. Once a competent court takes cognizance of the offence it is his duty to summon a person as an accused on finding a prima facie case made out against him even when he was not sent up by the police. It was further held in the said decision the summoning of an additional accused is part and parcel of the proceeding initiated by the taking of cognizance.

In this connection a reference may also be made to the case of India Carat Pvt. Ltd. Vs. State of Karnataka and Another, . In this decision it was observed that the position is now well settled that upon the receipt of a police report u/s 173(2) a Magistrate is entitled to take cognizance of an offence u/s 190(1)(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 .......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. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 though it is open to him to do so.

Approving the judgment in the case of Raghubans Dubey (supra) the Hon''ble Supreme Court in a recent decision in the case of M/s. SWIL Ltd. Vs. State of Delhi and Another, has observed as follows:

"In the present case, there is no question of referring to the provisions of Section 319 Cr. P.C. That provision would come into operation in the course of any enquiry into or trial of an offence. In the present case, neither the Magistrate was holding enquiry as contemplated u/s 2(g) Cr.P.C. nor had the trial started. He was exercising his jurisdiction u/s 190 of taking cognizance of an offence and issuing process. There is no bar u/s 190 Cr. P.C. that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet."

In a recent decision of this Court in the case of Horil Sao and Others Vs. The State of Bihar and Another various aspects of the law in this connection has been very lucidly considered by Chandramauli Kr. Prasad, J. in a remarkable judgment up-holding the above proposition of law.

I have carefully analysed the law on the subject as determined from time to time by this Court and the Hon''ble Supreme Court. It can safely be concluded that in a criminal case the ultimate arbiter is the Magistrate and not the police. The Magistrate can under law proceed against even such accused who have not been sent up for trial and even when the police has not submitted charge sheet against him. If the Magistrate finds that a prima facie case against him is made out on this account the Magistrate has full power to differ with the conclusion of the police.

On behalf of the opposite party it has been submitted that since the Addl. Sessions Judge where the session trial was proceeding had rejected the petition u/s 319 of the Code it was no longer open to the learned Chief Judicial Magistrate to pass the impugned order. In this connection a reference may be made to the order passed by the learned Additional Sessions Judge in S.T. No. 319 of 2002. As per this order the court has rejected the prayer of the prosecution to summon the present petitioner and another to stand their trial on the ground that the police investigation of the case as against the petitioner and another was still continuing and as such it cannot be said that they have not been named as accused persons in this case. He, accordingly held that the present petitioner and another could not be summoned u/s 319 of the Code during pendency of the investigation to face the trial alongwith other accused persons. This order has been passed on 28.6.2003 by the learned Addl. Sessions Judge and it was on this ground that he rejected the prayer of the prosecution to summon the present petitioner and another u/s 319 of the Code to stand their trial. From this also it would appear that the prayer of the prosecution for summoning the present petitioner and another u/s 319 of the Code was not rejected on merit. On the other hand this prayer was rejected on the ground that investigation against the present petitioner and another was still pending with the police and it would not be proper to treat them as persons not sent up for trial so as to attract the provisions of Section 319 of the Code. Obviously as per the law if the police would have submitted charge sheet against them they could not have been treated as persons not figuring as accused in the case. Hence it appears that for this reason the learned Addl. Sessions Judge refrained from passing the order u/s 319 of the Code against them.

This will, however, not mean that in a situation like this the learned Chief Judicial Magistrate was left with no alternative but to pass the order against the present petitioner and another in exercise of power of Section 190 of the Code. The law clearly gives such a power to the Magistrate taking cognizance of the offence and, therefore, on this account the impugned order cannot be said to be bad.

On behalf of the opposite party it has been submitted that after taking of the cognizance the learned Chief Judicial Magistrate had become functus officio so far as this case was concerned and, therefore, he was left with no authority under law to issue process against the accused persons who were not sent up for trial by the police. I do not find any merit in this submission. In this connection a reference may be made to Section 173(8) of the Code. It may be mentioned here that this sub-section has been newly added in the Code to meet exigencies like this. In the case of Ram Lal Narang Vs. State (Delhi Administration), it has been held that the addition of sub section (8) has clarified that sending of the report under sub-section (2) does not preclude further investigation and sending supplementary report or reports. Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under sub-section (2) the police can carry on repeated investigations on the discovery of fresh facts. From this it would appear that an accused discharged on final report u/s 173(2) of the Code can be prosecuted on further report u/s 173(8) of the Code. Hence I do not find any merit in this submission made on behalf of the opposite party. It is quite clear that it is open to the police to submit the supplementary charge sheet when the situation so warrants and further materials come on the record. So far as not sending up the accused for trial by the police is concerned it is clear that the Magistrate taking cognizance of the offence can differ with this conclusion of the police and can take cognizance of the offences against him and can also issue process putting him on trial. Relying on the case of Raghubans Dubey (supra) in another decision Hon''ble Supreme Court in the case of Hareram Satpathy Vs. Tikaram Agarwala and Others, has held that where the Magistrate after taking cognizance of the offence and perusal of the record and having been satisfied that there were prima facie grounds for issuing process against certain persons not mentioned in the police report, issued processes against them the Magistrate could not said to have exceeded the power vested in him.

In this connection it may be mentioned that this was not the stage of Section 319 of the Code since the impugned order has been passed by the learned Magistrate u/s 190 of the Code. This fact has been, properly explained in the decision of Swil Ltd. (supra) where also it was found that the stage of Section 319 of the Code had not come. Learned counsel for the opposite party had placed reliance on the case of Nisar and Another Vs. State of U.P., . This is a decision u/s 319 of the Code and will not fully apply to the facts of the present case.

From the detailed discussions made above it becomes perfectly clear to me that there is no defect in the impugned order and it appears to be correct in the eyes of law.'' I do not find any merit in this application and it is not fit for admission. For the reasons stated above this application is rejected.