Zahiruddin and 22 Others vs Chulho Paswan

Anand Prasad Sinha, J.—This application is directed against the order dated 15.7.1980 passed by the Chief Judicial Magistrate, Begusarai, in Case No. 419-C of 1976, by which the cognizance has been taken against the petitioners for the offences under sections 302, 149, 147, 148 and 427 of the Indian Penal Code. It appears that Teghra P.S. Case No. 22(6)76 had been registered on 27.6.1976 with regard to some occurrence on the basis of the information given by the chowkidar. About 17 persons had been named as accused persons for the offences under sections 147, 148, 307, 326, 149 of the Indian Penal Code and 25, 27 and 26 of the Arms Act and 3/4 of the Explosives Substance Act, but none of them include any of the petitioners. The first information report has been annexed as Annexure-1 to the petition.

Regarding the same occurrence, on the basis of the statement of the Officer Incharge of Teghra police station, another case had been registered being Teghra P.S. Case No. 23(6)76. No body had been named in the first information report as an accused.

Final report had been submitted in the above case on 3.9.1978. However charge-sheet was submitted on 14 3.1980 in Teghra P.S. Case No. 22(6)76.

Opposite party Chulho Paswan had also filed a complaint petition about the same occurrence on 30.6.1976 before the Chief judicial Magistrate. It appears that, probably, the charge sheeted case did not contain the names of any of the petitioners and that being so, the complaint petition had been filed by Chulho Paswan. He was examined on solemn affirmation on 1.7.1976 and on that very date, the learned Chief judicial Magistrate passed an order for making an inquiry u/s 202 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code''). In this complaint petition, the petitioners have been named as accused persons. After due inquiry, cognizance has been taken, as stated above.

Learned counsel appearing on behalf of the petitioners have challenged the impugned order on the grounds, inter alia, that (i) the learned Chief Judicial Magistrate has erred in law in looking into the police papers for the purposes of summoning the accused persons; (ii) when the complaint petition has been filed, it ought to have awaited u/s 210 of the Code till the submission of the final form in the polite case; (iii) although there is an allegation of gun shot, but it is not supported by the medical evidence.

With regard to the first submission reliance has been placed on a decision of this Court in the case of Ram Kumar Pandey v. The State of Bihar and another (1979 B.B.C.J., 293: 1979 P.L.J.R. 502). I am afraid, the contention raised on behalf of the petitioners cannot be accepted as the facts involved in this case is quite distinguishable from the facts involved in the aforesaid decision relied upon by the petitioners. In order to appreciate the law involved in such cases the principle laid down in the case of Chandra Deo Singh Vs. Prokash Chandra Bose and Another, appears to be extremely relevant. The relevant law laid down regarding the powers of a Magistrate, while dismissing a complaint u/s 203 of the Code has been indicated. The relevant portion runs as follows:--

xx xx xx xx

It was not open to him to consider in this connection the statements recorded during investigation by the police on the basis of the first information report lodged by Panchanan Roy or on the basis of any evidence adduced before him during the enquiry arising out of the complaint made by Mahendra Singh. All these were matters extraneous to the proceedings before him. xx xx xx.

There is no indication in this decision as to whether the same principle shall be a applicable at the time of taking cognizance by the learned Magistrate. On the contrary, there is sufficient indication in the Code itself, as laid down u/s 190 of the Code, that any material what-so-ever available and relevant for the case can be considered for taking cognizance. Section 190 of the Code reads as follows:--

190 Cognizance of offences by Magistrates.--(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence--

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.

Therefore, from a plain perusal of the section as laid down u/s 190(1)(c) of the Code, it will appear that any information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed, cognizance can be taken and if cognizance can be taken suo motu by the Magistrate and also by any information what so-ever, that being so, the power appears to be far and wide for taking cognizance on the basis of any category of materials what so ever.

Exactly, this is what is applicable in the facts of the present case, which will be discussed hereunder. The decision reported in Ram Kumar Pandey''s case (supra) has laid down as fellows:--

In my view, then it is not permissible to peruse the statement of the witnesses recorded during investigation either for the purposes of dismissing that petition of complaint u/s 203 or for the purpose of summoning the accused persons u/s 204. If for the purpose of dismissal of the complaint, the statement of witnesses examined during earlier investigation cannot be looked into, the same cannot be looked into even for the purpose of summoning. The Magistrate has to apply his mind only to the materials produced in connection with the complaint case and to any investigation which might have been ordered u/s 202 of the Code. In such a situation, I am left with no option but to hold that the learned summoning the petitioners should not have perused the case diary.

The facts giving rise to the impugned order of cognizance is quite distinguishable from the facts involved in the case just mentioned above.

It will appear that Teghra P.S. Case No. 22(6)76 has ended into submission of the chargesheet, but the accused mentioned in that case are different persons and none of the petitioners have been named as accused in that case.

The contention of the opposite party is that police case, which had been instituted at the instance of the Chowkidar, was, as a matter of fact, engineered by the petitioners to mislead the investigation and that was not an authenticated information by the aggrieved party, which need not be considered and discussed here as it involves purely a question of fact.

However, some of the prominent features, apparent on the face of the record, are with regard to the petitioners, who have been named as accused persons in the complaint petition, that no police case had been instituted against them and that being so, there was no investigation by the police against the petitioners in any criminal case in which they figured as accused persons.

The another prominent fact for consideration will be that the opposite party was, as a matter of fact an aggrieved party and he filed the complaint petition, probably, on account of the fact that he found that wrong informations have been given to the police making the entire case confusing and under this back ground he was compelled to file the complaint case naming the petitioners as accused persons.

In the impugned order, the only sentence mentioned by the learned Magistrate is that he had perused the case records of Teghra P.S. Case No. 23(6)76. This case was registered on the basis of the statements of the Officer Incharge regarding some occurrence and, as stated above, the first information report was against unknown persons.

This relevant fact will lead to another two important facts for consideration i.e. that there is no specific statement by the learned Magistrate that he had looked into the evidence of the witnesses recorded during investigation or he had looked into the case diary. As stated above, looking at the case record will never mean looking at the statement of the witnesses daring investigation by the police because the statement of the witnesses are in the case diary and case diary sever forms part of the case record.

Therefore, the facts involved in the case in hand is distinguishable from the facts involved in the case of Ram Kumar Pandey (supra). In the reported decision, at the time of taking cognizance, on the basis of the complaint petition, the learned Magistrate had looked into the statement of the witnesses recorded during investigation contained in the case diary, and the investigation was in respect of the same accused persons, who were involved in the complaint case. The another prominent fact is that the case record of Teghra P.S. Case No. 23(6)78 is in relation to a first information report against unknown person and the petitioners did not figure as accused persons at all.

That being so, the impugned order cannot be said to be bad in law considering the submissions raised on behalf of the petitioner that it was not permissible to take cognizance in the complaint case on the basis of the statements made by the witnesses during investigation.

I do not find any merit in the second submission also. The complaint was filed on 30.6.1976. The cognizance was taken on 15.7.1980, although Teghra P.S. Case No. 23(6)76 ended into the submission of a final report on 30.9.1978, which appears to have been accepted before the date, the impugned order of cognizance had been passed. Another Teghra P.S. Case No. 22(6)76 ended into the submission of chargesheet on 14.3.1980 and that will be alto before the date of passing of the impugned order.

It is true that when the complaint had been filed, two police cases were at the stage of investigation with the police and that being so. I have no hesitation in saying that the complaint case ought to have awaited u/s 210 of the Code, but, in the facts and circumstances of the case, that will not render the impugned order of cognizance either invalid or illegal. It is because, the impugned "order has been passed after finality had reached, so far the two police cases are concerned, one of which has ended into submission of the final report and the another in the submission of the charge-sheet. Moreover, as stated above, neither of the police cases were directed against the petitioners, who have been named as accused persons in the complaint case.

With regard to the disparity in the allegation of gun shot injuries and the actual medical report, that will also not render the impugned order of cognizance bad in law because it is purely a question of fact and that will depend upon the evidence available in the case. It will be appreciated that different stages had occurred in the entire occurrence. There was a mob duly armed and the mob had approached a particular disputed plot of land and thereafter the prosecution party started running away and as a matter of fact, two of the persons had taken shelter in a house and the said house had been broken open and thereafter, the two persons had been killed and that being so, it is difficult to say that at what stage the gun had been used and at what stage different weapons had been used for the actual commission of the murder. In the result, I do not find any merit in this application which fails and is dismissed.