Umesh Roy and Others vs The State of Bihar and Another

Nagendra Rai, J.—These petitioners are aggrieved by the order dated 29.7.2003 passed by the Judicial Magistrate 1st Class, Danapur in G.R. No. 946 of 2000 taking cognizance under sections 148, 149, 341, 323, 307, 380, 302 and 34 of the Indian Penal Code and 27 Arms Act against the petitioners and others. The factual profile of the case is that Ram Chandra Rai, resident of village Chihatar, P.S. Maner, District-Patna lodged fardbeyan on 27.6.2000 at 9.30 A.M. before the S.I. of Pirbahore Police Station alleging inter alia that on the preceding day on 26 6.2000 at about 3.30 P.M. he alongwith his deceased son Buddhi Yadav was returning to his village home from Maner Bazaar and when he reached near Maner Tola, 17 accused persons including these six petitioners, namely, Umesh Roy, Ram Prit Roy @ Ram Krit Roy, Modi Roy, Vikram Roys Kamlesh Roy and Baban Roy came there armed with lathi, Danda and pistol and caught hold of his deceased son Buddhi Rai and accused Hridya Roy fired at him causing injury on the neck, as a result, he fell down. The informant could not proceed further due to fear. In the meantime, aforesaid 17 persons including these petitioners assaulted the deceased with lathi and danda and seeing the aforesaid ghastly incident the informant fell down. In the meantime, nine of the co-villagers, namely, Kwnwar Singh, Vidya Bhushan Singh, Bhairo Singh, Amit Kumar, Bharat Prasad Singh, Manoj Singh, Mithilesh Singh, Munna Kumar and Lakshman Kumar, who were also returning from Maner Bazaar, also reached there. The accused persons including these petitioners seeing them chased and indulged in indiscriminate firing. Aforesaid nine persons took shelter in the house of Bachcna Singh and Jawahar Prasad Singh, the co-villagers, who had constructed pucca house there. All the miscreants including the petitioners thereafter attacked the house of aforesaid two persons and caused injury to the aforesaid nine co-villagers of the informant. In the meantime, the accused persons alongwith their companions also entered in the house of Bachcha Singh and Jawahar Prasad Singh and tooted articles. Thereafter, the injured were taken to hospital where the son of the informant Buddhi Rai died.

The motive uttered by the informant for the occurrence was that on 26.6.2000 at 2.30 P.M.. one of his co-villagers was grazing his buffalo and some of the accused persons named in the F.I.R. assaulted him. However, the matter was pacified but due to that reason they committed the aforesaid crime. On the basis of the said fardbeyan Maner Police registered Maner P.S. Case No. 127of 2000 and after investigation submitted final form dated 25.3.2003 and sent up accused Hridya Rai, Sharda Ram, Rajaram Rai, Raghubar Rai, Manoj Kumar, Dilip Kumar and Kedar Rai on coming to the conclusion that there are materials against them and did not send up these six petitioners and two others. Two of the accused persons alleged to have been named in the F.I.R. are stated to be dead.

By the impugned order the learned Magistrate after perusal of the record differed with the opinion of the police and took cognizance and summoned these petitioners also for facing trial, though as stated above, they alongwith two others were not sent up for trial by the police while submitting final report u/s 173 of the Code of Criminal Procedure.

Learned counsel appearing for the petitioners submitted that once the police did not send up the petitioners after having found that no case was made out for sent up for trial, the learned Magistrate was not justified in issuing processes against them also while taking cognizance and issuing processes against the accused persons who were sent up for trial.

Learned counsel appearing for the State, on the other hand, submitted that after the police submits final form which may be either chargesheet or final report stating that no case is made out against the accused persons or chargesheet against some accused only and remaining are not sent up, the Magistrate has power to differ with the opinion of the police and proceed according to law. The case where final report has been submitted and none of the accused have been sent up for trial and in a case where some of the accused have been sent up for trial, the Magistrate may differ with the opinion of the police and take cognizance and proceed against all the accused persons against whom final report has been submitted and in a case where only few persons are not sent up, while taking cognizance the Magistrate can issue summon against them also after having differed with the opinion of the police.

Both sides have relied upon the judgments of the Supreme Court in support of their stand which will be referred while considering their submissions.

Under the Code of Criminal Procedure in a case triable by the Court of Sessions, there are three stages in a police case, i.e. investigation, enquiry in the shape of commitment and the trial. If the case is not triable by the court of Sessions, then the stages are investigation and trial. In a case based on complaint before issuance of processes the court can take recourse to enquiry u/s 202 of the Code. Power of investigation falls within the domain of the police and the settled law is that at that stage the Magistrate has no power to direct the police to investigate the case in a particular manner, but once final form is submitted, be final report or chargesheet, then the matter comes within the domain of the Magistrate u/s 190 of the Code of Criminal Procedure and the Magistrate has to exercise his discretion according to law. Even if the police has submitted final form that no case is made out for putting the accused on trial, the Magistrate may either direct for further investigation under the relevant provisions or he may differ with the opinion of the police and take cognizance and issue summons against all or some of the accused persons depending upon the materials collected. Even in a case where charge sheet has been submitted against some of the accused persons and some of the accused though name in the F.I.R. are not sent up for trial, it is open to the Magistrate to differ with the same and proceed according to law. However, if at the time of taking cognizance the Magistrate does not summon the accused who were not sent up for trial then at the subsequent stage of commitment in a case triable by the court of Sessions, the Magistrate is powerless to summon the accused and the only power provided under the Code is to the court Sessions u/s 319 of the Code of Criminal Procedure which provides that after taking evidence if the court finds that there is evidence against the accused though he has not been sent up for trial, it can summon the accused.

This proposition is almost settled by the catena of decisions of the Supreme Court but as the learned counsel for the petitioners has heavily relied upon the judgment of the Supreme Court in support of his contention in the case of Kishori Singh vs. State of Bihar, reported in 2001 Cri. L.J. 123, it is relevant to mention about the said case to find out as to whether the '' learned counsel for the petitioners can have the support from the proposition of law laid down in the said case. The factual matrix in that case is that the police after investigation submitted charge sheet and sent up for trial certain accused persons and some accused persons who were shown in the category of accused were not sent up for trial. Learned Magistrate on 10.6.1997 took cognizance and issued processes against the accused who were sent up for trial. Later on after cognizance of the offence u/s 302 of the Indian Penal Code commitment proceeding started and a prayer was made to issue non-bailable warrant against those accused also who were not charge-sheeted by the police though they were named as accused in the F.I.R. and by order dated 22.10.1997 the learned Magistrate summoned them also and that matter was under consideration before the Apex Court and the Apex Court relying upon the judgment in the case of Raj Kishore Prasad Vs. State of Bihar and another, and the three Judges judgment of the Apex Court in the case of Ranjit Singh Vs. State of Punjab, , held that the Magistrate could not have issued processes against the accused persons by order dated 10.6.1997 and observed that they could be arrayed as accused persons in exercise of powers u/s 319 of the Code of Criminal Procedure. In Raj Kishore Prasad''s case and Ranjit Singh''s case (supra) the facts are that the accused were not summoned at the stage of taking cognizance. The court differed with the opinion of the police at the subsequent stage but before taking evidence in trial u/s 319 of the Code of Criminal Procedure and the accused were summoned and in that context it was observed that the court is powerless. In Kishori Singh''s case (supra) the Magistrate has issued summons not at the time of taking cognizance and issued processes at the initial stage but at the subsequent stage which in a case u/s 302 of the Indian Penal Code will be nothing but the stage of enquiry under the law and in that context the Apex Court quashed the order.

There are catena of decisions holding that at the time of taking cognizance the court has power to differ with the opinion of the police and proceed against the accused persons who were not sent up. it is not necessary to multiply all the cases but suffice it to say that even under the old Code in the case of Raghubans Dubey Vs. State of Bihar, the Apex Court held that the cognizance is taken of the offence and not the offenders and the Magistrate has to proceed against those offenders not sent up by the police. The summoning of the additional accused is a part of the proceeding initiated by this taking cognizance of an offence.

In the case of Abhinandan Jha and Others Vs. Dinesh Mishra, the question was as to whether after completion of investigation when the police submits final report, the court has power to direct the police to submit chargesheet. It was held by the Apex Court that the police and the Magistrate has own separate fields of operation. The Magistrate may not accept the report and take suitable action according to law but he cannot impinge upon the jurisdiction of the police by compelling them to change their opinion so as to accord with his views. While dealing with the said matter, the Apex Court held that the Magistrate may differ with the opinion of the police and either send for further investigation u/s 156(3) of the Code or may take cognizance and summon the accused not sent up by the police.

In the case of M/s. SWIL Ltd. Vs. State of Delhi and Another, , the Apex Court held that at the time of taking cognizance person not joined as accused in the chargesheet submitted by the police, can be summoned and at that stage there is no question of applicability of Section 319 of the Code. It is apt to quote para-6 of the judgment which reads 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 S. 190 Cr.P.C. 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, Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under S. 204 Cr.P.C. 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 F.I.R. and the statements recorded by the Police Officer and other documents tendered alongwith charge-sheet. Further, upon receipt of Police report under S. 173(2), Cr.P.C, the Magistrate is entitled to take cognizance of an offence under S. 190(1)(b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at 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 S. 319, Cr. P.C. Similar contention was negatived by this Court in Raghubans Dubey Vs. State of Bihar, by holding thus (para 9 of AIR, Cri LJ):

"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 this taking cognizance of an offence".

Same view has been reiterated in the case of Union of India (UOI) Vs. Prakash P. Hinduja and Another, , wherein in para 14 it was held as follows:--

"14. The Magistrate is no doubt not bound to accept the final report (sometimes called as closer report) submitted by the police and if he feels that the evidence and material collected during investigation justify prosecution of the accused, he may not accept the final report and take cognizance of the offence and summon the accused but this does not mean that he would be interfering with the investigation as such. He would be doing so in exercise of powers conferred by Section 190 Cr.P.C. The statutory provisions are, therefore, absolutely clear that the court cannot interfere with the investigation."

Recently, in the case of Jagdish Ram Vs. State of Rajasthan and Another, , same view has been reiterated and held that notwithstanding the opinion of the police a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose.

Thus, there is clear cut separation between two stages, (1) stage of taking cognizance and (2) stage of summoning the accused during trial in exercise of power u/s 319 Cr.P.C. In case the accused is not sent up for trial and the Magistrate does not proceed against them after going through the records at the time of taking cognizance and summoning, at the subsequent stage after commitment he cannot summon them in view of the settled law on the point. Even at the stage of trial before evidence the trial court can also not summon the accused before recording evidence. However, if he finds that there are materials justifying putting the accused on trial before recording of evidence, then only option open for the trial court is to send the report to the High Court so that the High Court can under inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing processes to such left out accused but such power is to be resorted to only rectify gross mistakes and such cases may be a few and the same may not be a rule (See para 23 of Ranjit Singh''s case (supra).

As the Magistrate after having considered the F.I.R. and other materials collected has differed with the opinion of the police and issued processes against them after taking cognizance, this Court does not find any legal infirmity justifying interference with the order of the Magistrate. In the result, this application is dismissed.