Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.428 of 2011 ====================================================== 1. Gorelal Singh @ Deepak Kumar S/O Raj Kumar Sharma R/O Village- Hati, P.S-Kako (Bhelawar) Distt-Jehanabad. 2. Raj Kumar Sharma @Jangli Sharma S/O Shiv Dani Sharma R/O Village- Hati, P.S-Kako (Bhelawar) Distt-Jehanabad. Versus .... .... Petitioner/s The State Of Bihar ====================================================== Appearance: For the Petitioner/s : Mr. Ajay Kumar Thakur, Adv. ……….... Respondent/s Mr. Ravi Ranjan, Adv.
Legal Reasoning
For the State : Mr. Ramchandra Sahani, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER 4. 22-08-2013 Petitioners have challenged the order dated 12.10.2012 whereby and whereunder the learned Chief Judicial Magistrate had summoned the petitioners including others to face trial for an offence punishable under Sections 147/ 148/ 149/ 323/ 427/ 436 IPC and 3(ii)(i) SC St (Prevention of Atrocities) Act in connection with Kako P.S. Case No.44 of 2010. 2. Rohi Das gave his fardbeyan on 01.03.2010 at the Verandah of Emergency Ward of Sadar Hospital, Jehanabd disclosing therein that on the same day at about 07:00 A.M. while they were at their huts which they have erected South of Hati Road, all of a sudden Srikant Sharma, Abhay Sharma, Nibhay Sharma, Rakesh Sharma, Ravi Sharma, Harikant Sharma, Ramakant Sharma, Rahul Kumar, Amarendra Sharma, Ranjey Sharma, Ashutosh Sharma, Harikant Sharma, Radhe Shyam Kumar, Panna Kumar, Gunjan Kumar, Ranjeet -2- Kumar, Ranjay Sharma, Sharwan Sharma, Saket Sharma, Ravi Kumar, Raj Kumar Sharma, Sunil Sharma, Raushan Sharma armed variously, raided and began to assault them. Then thereafter they lit fire in their huts on account of which all their belongings set a blaze. Rakesh Das, Jitendra, Raushan Kumar, Sam Kumari Devi, Napki Devi, Mohit Das have sustained injuries at their hands who have been admitted to hospital for treatment. After registering Kako (Velwar) P.S. Case No. 44 of 2010, the investigation commenced and concluded by way of submission of charge sheet against Srikant Sharma, Harikant Sharma, Ranjey Sharma, Nirbhay, Harikant, Ravi, Ashutosh while remaining were not sent. The learned Chief Judicial Magistrate differing there from also summoned the petitioners including others who were not sent up for trial including the persons who were sent up for trial after going through the case diary, for an offence punishable under Sections 147/ 148/ 149/ 323/ 427/ 436 IPC and 3(ii)(i) SC St (Prevention of Atrocities) Act, hence this revision. 3. It has been submitted on behalf of petitioners that no such kind of occurrence had ever taken place. It has also been submitted the land happens to be a “Gair Majarua” land which was forcibly encroached upon by the persons belonging to Communist Party. It has also been submitted that they, on their own, set a blaze the hut to falsely implicate the petitioners on account of local politics as well as for obtaining money under Indira Awas Yojna and that happens to be the report of Dy.SP (Special Cell), Jehanabad-II to the -3- S.P. (Special Cell) (Annexure-3). It has also been submitted that the aforesaid issue was raised in Vidhan Sabha and the Government answered supporting the aforesaid fact (Annexure-4). Annexure-5 happens to be the letter sent by C.O. to the Officer-in-charge requesting him to remove encroachment over the Gairmajarua land. Annexure-6 is the Admit Card relating to petitioner Gorelal Singh @ Deepak Kumar to suggest that on the alleged date he was examinee of matriculation examination and his centre was at S.S. College where examination was to commenced from 05.03.2010. Annexure-7 happens to be the representation made by petitioner no.2 to S.P., Jehanabad showing his alibi on account of being Industry Extension Officer posted at Nawada, was on duty at District Control Room, Nawada as a Magistrate from 28.02.2010 to 03.03.2010 and Annexure-8 happens to be the copy of Attendance Register. 4. It has also been submitted that the learned Chief Judicial Magistrate in the aforesaid background should not have disbelieved the finding and conclusion arrived at by the Investigating Authority over authenticity of alibi and consequent thereupon, summoning of petitioner is not at all maintainable. 5. On the other hand the learned Additional Public Prosecutor opposed the prayer and submitted that at the stage of taking of cognizance the learned Chief Judicial Magistrate was quite competent to differ therefrom. As such, the order impugned is just legal and proper. -4- 6. So far action of learned Chief Judicial Magistrate is concerned that happens to be within the four corner of law. In M/s India Carat Private Ltd. v. State of Karnataka & Anr. reported in (1989) 2 SCC 132, the three judges Bench of the Hon’ble Apex Court explaining the position in para-16 held. “16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 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 and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion the investigation has made out a case against the accused. 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, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused….” that 7. In S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. & Ors. reported in (2008) 2 SCC 492 it has been held: “19. The expression “cognizance” has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of” and when used with reference to a court or a Judge, it connotes “to take notice of judicially”. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.” 20. “Taking cognizance” does not involve any -5- formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance”. 8. Therefore, summoning of petitioners differing from the police report happens to be within the exclusive domain of the learned Chief Judicial Magistrate and on that very score there happens to be proper application of the law. 9. With regard to factum of alibi it happens to be a factual aspect which could be ascertained with its authenticity during course of trial only. 10. So far propriety of the order is concerned, it is apparent that the learned lower court had made up its mind after going through the case diary and differed from the conclusion where under petitioners including others have been summoned. Thus, the order impugned did not warrant any sort of inference, consequent thereupon petition is rejected. (Aditya Kumar Trivedi, J.) Patna High Court Dated, the 22nd day of August, 2013 Prakash Narayan / A.F.R.