Nathun Yadav and Arjun Yadav vs The State of Bihar

N. Rai, J.—The Petitioners have filed the present application for quashing the order dated 17.2.2000 passed in Sessions Trial No. 254 of 1999 by Addl. Sessions Judge. VIII, by which the application filed u/s 227 of the Code of Criminal Procedure (hereinafter referred to as the Code) to discharge them in the said case under Sections 302, 120 B and other Section of Indian Penal Code and Section 7 of the Criminal Law (Amendment) Act has been rejected and ordered for framing of charges under the said sections.

The prosecution case is that Smt. Tetari Devi, wife of Late Surender Beldar of village Rampur, P.S. Tekari, District Gaya lodged a fardbeyan on 2.12.1996 at 1.30 A.M. alleging therein that on 1.12.1996 at 6 P.M. her husband and her younger brother-in-law were taking rest in e house after taking meal. Other family embers were also present. Then large lumber of extremists including the Petitioners came. They cut their neck and killed them on the spot and left the places after raising slogans of MCC. The Police after investigation submitted charge sheet against some of the accused persons and has not sent up the Petitioners and two others. Two of them merely, Nathun Yadav and Arjun Yadav came to this Court for quashing the order of cognizance in Cr. Misc. 12289 of 1997. The said application was dismissed with an observation that the Petitioners may raise the points raised in that application at the time of framing of charges. Thereafter at the time of framing of charges, the Petitioners filed the said application u/s 227 of the Code. It was submitted behalf of the Petitioners that no case made out and the Court below having considered the materials found that prima facie case is made out and accordingly, rejected the prayer of the Petitioners. Hence, the present application.

Learned counsel for the Petitioners submitted that as the Petitioners were not sent up by the police, the Magistrate has power to summon up at the stage of taking cognizance. This point is devoid of substance. The police after investigation has to submit a final form which may be either charge sheet where all or some of the accused may be sent up or it may be final report where no recommendation from prosecution is made out. The police may also send charge sheet against the accused named in the FIR and may not send up the other accused persons named in the FIR. The opinion expressed by the Police during investigation culminating into final form is not binding on the Court. The Court taking cognizance has to consider the matter and it can differ with the police report. The law on this point is well settled. There is no controversy at all. The Apex Court as back as in the case of Abhinandan Jha and Others Vs. Dinesh Mishra, held that formation of an opinion as to whether or not there is a case to place the accused for trial, is that of the Officer in-charge of the Police station and that opinion determines whether the report is to be u/s 170, being a ''charge sheet'', or u/s 169, ''a final report''. The Magistrate is not bound to accept the same and he can disagree with the opinion of the police. Even if the police has submitted a final report or has not sent up the accused the Magistrate can take cognizance and proceed u/s 190(1)(b), notwithstanding the contrary opinion of the police expressed in the final report. In a case while submitting the charge sheet the police has not sent up the accused against whom there is material, the Magistrate can differ with the opinion of the police and issue summons against them also.

The Supreme Court in the case of Raghubans Dubey v. State of Bihar, reported in AIR 1967 page 1167, held that once the Magistrate takes cognizance, 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 there are material against the other accused persons for issuance of summons, he can summon the accused. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. The Apex Court in the case of M/s. SWIL Ltd. Vs. State of Delhi and Another, , relying upon the aforesaid judgments held that even if the accused person has not been sent up by the police, he should also be summoned by the Magistrate taking cognizance and at this stage, Section 319 Code of Criminal Procedure does not operate in such situation. It is relevant to quote paragraphs 6 and 7 of the judgment which are as follows:

In our view, from the facts stated above, it is clear that at the stage of taking cognizance of the offence, provisions of Section 190 Code of Criminal Procedure would be applicable. Section 190 inter alia provides that "the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence". As per this provision, the Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate u/s 204 Code of Criminal Procedure is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge-sheet and also not named therein. For that purpose, he is required to consider the FIR and the statements recorded by the police officer and other documents tendered along with charge-sheet. Further, upon receipt of police report u/s 173(2) Code of Criminal Procedure the Magistrate is entitled to take cognizance of an offence u/s 190(1)(b) even if the police report is to the effect that no case is made out against the accused by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At this stage, there is no question of application of Section 319 Code of Criminal Procedure Similar contention was negatived by this Court in Raghubans Dubey v. State of Bihar by hokfing thus : (AIR 1169 9)

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 reaiy am and once he comes to the conclusion that apart from the persons set up by the police some other persons art 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.

Further, in the present case, there is no question of referring to the provisions of Section 319 Code of Criminal Procedure 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) Code of Criminal Procedure 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 Code of Criminal Procedure that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom them is some material on record, but his name is not included as accused in the charge sheet.

Coming to the facts of the case, the Petitioners are named in the first information report. The Court below has found that there are materials to show that the Petitioners have participated in the crime. In that view of the matter, it cannot be said that there is no material at all to make out a prima facie case for framing of charges against the Petitioners.

In the result, there is no merit in this case. The application is dismissed.