Afsana Khatoon v. State of Bihar

Patna High Court Cr.Misc. No.37951 of 2013 (3) dt.19-12-2013 2 For the Opposite Party no.1 : Mr. Satya Nand Shukla, APP (In Cr.Misc. No.45163 of 2013) For the Petitioners : Mr. Ganesh Prasad Singh, Advocate Mr. Prabhat Kumar Singh, Advocate For the Opposite Party no.1 : Mr. Anuj Kumar Srivastava, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 3 19-12-2013 Heard.

2. In both the applications the petitioners are aggrieved by the order dated 24.6.2013 passed by the learned Chief Judicial Magistrate, Muzaffarpur, in G.R.No.2717 of 2011 corresponding to Hathauri P.S.Case No.125 of 2011. Therefore, with consent of the parties, both the matters have been heard together and are being disposed of by this common order.

3. By order dated 16.9.2013, notice was issued to the opposite party no.2 (informant) and though she has entered appearance through her counsel, but when these matters have been taken up for final disposal, none is appearing on her behalf to oppose the prayer made on behalf of the petitioners.

4. By the common impugned order dated 24.6.2013 passed by the learned Chief Judicial Magistrate, Muzaffarpur, cognizance has been taken under Section 302/34 of the Indian Penal Code against the accused persons who all are the petitioners before this Court in the aforesaid applications, and case has been transferred to the court of learned Judicial Magistrate 1st Class, Muzaffarpur, for commitment. In the FIR vide Annexure-1, the petitioners are named as accused persons. However, on close of investigation, police has submitted the final report dated 18.5.2012 vide Annexure-4 under Section 302/34 of the Indian Penal Code, but these petitioners were not charge-sheeted due to lack of sufficient evidence. Yet, by the impugned order dated 24.6.2013, Patna High Court Cr.Misc. No.37951 of 2013 (3) dt.19-12-2013 3 the learned Chief Judicial Magistrate has disagreed with the police report and has taken cognizance against the petitioners.

5. Learned counsel appearing on behalf of the petitioners in both the cases has submitted that the entire prosecution case is based on suspicion and surmises and admittedly the informant is not an eye-witness of the actual occurrence. According to him, the witnesses who were allegedly present at the alleged place of occurrence, have not supported the prosecution version and, therefore, police did not submit chargesheet against these petitioners. However, the learned Chief Judicial Magistrate, without application of his independent judicial mind to the facts of the case, has mechanically disagreed with the police report and has taken cognizance against the petitioners without disclosing reasons for such disagreement.

6. Learned Additional Public Prosecutor appearing on behalf of the State of Bihar has fairly submitted that matter requires reconsideration by the learned Chief Judicial Magistrate as he has failed to indicate about the sufficiency of materials for disagreeing with the police report in the impugned order. As noticed above, though the opposite party no.2 has entered appearance, but none is appearing on her behalf to resist the prayer made on behalf of the petitioners.

7. After having heard the parties and on consideration of the materials available on the record, this Court finds that it is true that the petitioners are named in the FIR as accused persons. They are alleged to have participated in the commission of crime in question. But it is equally true that on close of investigation, police did not find sufficient materials for submission of chargesheet against these petitioners. Therefore, Patna High Court Cr.Misc. No.37951 of 2013 (3) dt.19-12-2013 4 police has submitted final report vide Annexure-4, but the petitioners were not charge-sheeted. This Court is of the opinion that in a given case, the learned Chief Judicial Magistrate had three options. Firstly, he could have accepted the final report and could have dropped the entire proceeding against the accused petitioners; secondly, he could have disagreed with the police report and could have taken cognizance against the petitioners, but while disagreeing with the police report he was required to indicate in his order that there are materials available on the record including case diary, which entitles him to disagree with the police report for the purpose of taking cognizance against the accused persons and, thirdly, he could have directed for further investigation in terms of Section 173(8) Cr.P.C. However, the learned Chief Judicial Magistrate has opted for second option and has disagreed with the police report. Unfortunately, while doing so, he has not recorded the reasons for such disagreement. He has also not indicated the materials which are available on the record for differing with the police report. Yet in a mechanical manner he has taken cognizance against the petitioners for a serious offence under Section 302/34 of the Indian Penal Code, which cannot be sustained in law. My above conclusions are supported by the ratio laid down by Hon’ble Apex Court in the case of Gangadhar Janardan Mhatre vs. State of Maharastra [(2004) 7 SCC 768].

8. For the reasons recorded above, the impugned order dated 24.6.2013 passed in G.R.No.2717 of 2011 corresponding to Hathauri P.S.Case No.125 of 2011 by the learned Chief Judicial Magistrate, Muzaffarpur, is hereby quashed and set aside, and both the matters are remitted back to the learned Chief Judicial Magistrate, Muzaffarpur, for passing a fresh order strictly Patna High Court Cr.Misc. No.37951 of 2013 (3) dt.19-12-2013 5 in accordance with law as indicated above, but before doing that he shall be obliged to give opportunity of hearing to the petitioners as also to the informant (opposite party no.2).

9. Both the applications stand allowed to the extent indicated above. mrl. (Birendra Prasad Verma, J)