Rupan v. Andhavan Diyara, P.S. Antichak, district Bhagalpur

Patna High Court Cr.Misc. No.37073 of 2012 (4) dt.14-08-2013 Prasad Mandal shot at the father of the informant on point blank range causing injury on the side of his father and his father fell down. On hulla and on sound of firing the neighbours rushed to the place of occurrence lighting their torches, then, the accused persons fled away firing and the witnesses, who rushed to the place of occurrence, have also identified. They took the father of the informant for treatment, but, the father of the informant died in the way. The motive of the occurrence alleged to be the prior land dispute. On the fardbeyan the first information report was lodged and the police after investigation, filed final form that the occurrence is true, but, no clue and did not sent up the petitioners for trial. The informant filed protest petition and the learned Magistrate by order, dated 10.08.1999, pleased to take cognizance on the basis of the statements of the witnesses, recorded under Section 164 of the Criminal Procedure Code and the accused persons (petitioners) filed a Criminal Miscellaneous No. 3562 of 2001 before the Hon’ble High Court against the said order taking cognizance and the Hon’ble High Court by order, dated 31.10.2002, quashed the order taking cognizance on the basis of the statements of the witnesses, recorded under Section 164 of the Criminal Procedure Code and remitted back the case to the learned Chief Judicial Magistrate, Bhagalpur, observing that the Magistrate decides to proceed with the protest petition treating the same to be complaint petition. He was required to examine the comp on solemn affirmation and all the witnesses and passing of fresh order in accordance with law. Thereafter, the learned Magistrate proceeded for enquiry on the protest-cum-complaint and examined complainant on solemn affirmation and examined the six witnesses and, thereafter, the learned Magistrate ordered to issue summon against the accused persons after taking cognizance for Patna High Court Cr.Misc. No.37073 of 2012 (4) dt.14-08-2013 offence under Sections 302 of the Penal Code and 27 of the Arms Act on the basis of the statements of the complainant and witnesses as well as perusal of the charge sheet and final form submitted by the police in the case as well as the carbon copy of the post mortem report of the deceased attached in the case diary. The said order, dated 06.08.2011, issuing process against the accused persons, after taking cognizance for offence under Sections 302 of the Penal Code and 27 of the Arms Act has been challenged before this Court on the ground that the learned Magistrate, while proceeding protest-cum-complaint considering the statements of the complainant and the witnesses also looked into the case diary and the post mortem report which was subject matter of investigation of the police case. It has been contended that the learned Magistrate while summoning the accused after taking cognizance should not have perused the case diary when the Magistrate after accepting the final form submitted by the police in police case proceeded on protest-cum-complaint . It is submitted that Magistrate can not look into the police paper for the purpose of summoning the accused or dismissing the complaint while proceeding on the protest-cum- complaint and the Magistrate is required only to confine on the material produced during enquiry on the protest-cum-complaint and has placed reliance upon decision reported in 1998(1) B.L.J.R., 192 (Rejeshwar Sah vrs Lallan Singh). In the decision reported 1998(1) B.L.J.R., 192 (supra) the Chief Judicial Magistrate rejected the complaint under Section 203 of the Criminal Procedure Code in case for offence under Sections 147, 323, 452, 380 and 307 of the Penal Code for allegation of looting the shop, then, protest-cum-complaint was filed and protest-cum-complaint petition was rejected. It was contended that the learned Magistrate discarded the evidence of complainant and the witnesses on the ground that the statements of complainant and witnesses were at variance with the material Patna High Court Cr.Misc. No.37073 of 2012 (4) dt.14-08-2013 collected in the case diary and dismissed the complaint. The said order was challenged on the ground that the learned Magistrate can not look into the case diary to discard the evidence collected during enquiry under Sections 200 and 2002 of the Criminal Procedure Code. It was held that the Magistrate while issuing process under Section 204 of the Criminal Procedure Code or discharge under Section 203 of the Criminal Procedure Code can not perused the case diary. The reliance has also been placed on decisions reported in 1988 P.L.J.R., 216 (Naresh Singh & 2 Ors. Vrs. The State of Bihar) and 1979 B.B.C.J., 293 (Ram Kumar Pandey Vrs. The State of Bihar & Anr.) However, the decision reported in1988 P.L.J.R., 216 (supra) was decided in view of the decision reported 1979 B.B.C.J., 293 (supra) in the fact in the case reported in 1979 B.B.C.J. 293 (supra) the fact that case proceeding on lodging of information report and after investigation final form submitted and, thereafter, a complaint petition was filed and, then, on the complaint after case of complainant on solemn affirmation the impugned order was passed “perused the case diary and statement of the complainant on oath prima facie case under Sections 385 and 504 of the Penal Code appears to have been made out and cognizance taken under Sections 504 and 380 of the Penal Code………” The same was challenged on the ground that while summoning accused on complaint the Magistrate looked into case diary and which is not permissible. It was held that taking cognizance on the basis of police report is under Sections 190(1) of the Criminal Procedure Code. But, in facts and circumstances the Magistrate proceeded on complaint after taking cognizance under Section 190(1)(a) of the Criminal Procedure Code, examined the complaint on solemn affirmation accordance with Section 200 of Chapter XV of the Criminal Procedure Code, then, it is not permissible to peruse the statement Patna High Court Cr.Misc. No.37073 of 2012 (4) dt.14-08-2013 of the witness recorded during investigation either for dismissing that petition of complaint under Section 203 of the Criminal Procedure Code or for summoning the accused persons under Section 204 of the Criminal Procedure Code, the Chief Judicial Magistrate for the purpose of summoning the accused persons. However, the question of correction of view expressed in 1979 B.B.C.J., 293 (supra) that the Magistrate while taking cognizance on protest/complaint is not required to look into the police paper was questioned in decision reported in A.I.R. 1988 Patna, 15 (Gajendra Swaroop Srivastava Vrs. Baleshwar Prasad Kesari) which was at first instance referred to Full Bench of three Judges, where reliance placed on an earlier Full Bench decision on same point reported in A.I.R. 1929 Patna, 473 (Bharat Kishori Lal Singh Deo vrs. Judhistir Modak) where it was held that clauses (a), (b) and (c) of Section 190 of the Criminal Procedure Code was not mutually exclusive and was challenged on the ground that this view has been over ridden by decision of the Supreme Court reported in A.I.R. 1963 S.C., 1430 (Chandradeo Singh vrs. Prokash Chandra Bose) and is no longer good law. Hence, the matter placed before Full Bench of five Judges as the coequal Bench precluded from taking a contrary view to decision reported in A.I.R. 1929 Patna, 473 (supra). The Full Bench formulated two issues : “(i) Whether clauses (a), (b) and (c) of sub section 1 of Section 190 of the code of Criminal Procedure, 1073, pertaining to the cognizance of offences by the Magistrate under the said Section are mutually exclusive ? (ii) Whether the issue of process against the accused under section 204 after cognizance by the Magistrate under Section 190 is identical with, and consequently shackled by the specific, requirements mandated by Section 203 of the Patna High Court Cr.Misc. No.37073 of 2012 (4) dt.14-08-2013 Code for the dismissal of a complaint ?” The Full Bench while deciding issue no. (i) held that view taken in A.I.R. 1929 Patna, 473 (supra) reiterated in A.I.R. 1978 Pat, 298 (Kuli Singh & Ors. Vrs. The State of Bihar & Ors.) is as follows : It is in the light of the above that one has to see the width with which the power cognizance of offences by Magistrate has been couched in the three clauses (a), (b) and (c) of Section 190(1). It nowhere follows from the language that these three clauses are mutually exclusive and hermetically sealed from each other. It is perhaps significant to note that the three clauses are not divided by the word “or” from each other. In the well known case of R.S. Nayak v. A.R. Antulay (1984) 2 SCC 183: (AIR 1984 S.C. 684), their Lordships elaborated the four methods of taking cognizance of an offence. That these are not mutually exclusive indeed seems manifest both from the language of Section 190 and equally from precedent. There appears no legal mandate whatsoever cognizance must be taken either under clause (a) or clause (b) or clause (c) separately and that they do not intermingle or overlap each other. Yet again in AIR 1968 SC 117 (Abhinandan Jha v. Dinesh Mishra) their Lordships clearly held that even in the case of a police report under Section 190(1)(b) although the Magistrate cannot direct the filing of a charge-sheet, he can nevertheless take cognizance under Section 190(1)(c). It is thus plain that on high authority clauses (b) and (c) may overlap and on parity or reasoning there Patna High Court Cr.Misc. No.37073 of 2012 (4) dt.14-08-2013 can possibly be no legal bar with regard to clauses (a) and (b) or (a) and (c). It thus seems manifest that at least for the purposes of taking cognizance watertight compartmentalization of the said clauses under which a Magistrate may choose to issue process. Therefore, hermetic sealing compartmentalization of clauses (a), (b) and (c) or sub-section (1) of Section 190 and holding that these are mutually exclusive is neither justified on principle nor on authority. To conclude on this aspect, the answer to question No. (i) framed at the outset is rendered in the negative and it is held that clauses (a), (b) and (c) of sub-section (1) of Section 190 of the Code of Criminal Procedure, 1073 pertaining to cognizance of offences by the Magistrate under the said section are in no way mutually exclusive. While deciding issue no. (ii) the Full Bench held that the dismissal of the complaint under Section 203 of the Criminal Procedure Code and issuance of process under Section 204 of the Criminal Procedure Code are not identical, but, distinct. In A.I.R. 1963 S.C., 1430 (supra) it has been held that the Section 203 of the Criminal Procedure Code in specific term expressly mandated that while dismissing the complaint under Section 203 of the Criminal Procedure Code what has to be considered thereof is the statement on solemn affirmation of the complainant, the statement of the witnesses on oath, it is relevant to quote concluding lines of paragraphs 22 and 24 of Full Bench decision reported in A.I.R. 1988 Patna, 15 (supra) : “It is somewhat plain that Chandra Deo Singh’s case (supra) is not the least warrant for the proposition that S. 204 for the purpose of issue of Patna High Court Cr.Misc. No.37073 of 2012 (4) dt.14-08-2013 process shackled by requirements prescribed for an altogether different situation of the dismissal of a complaint at the threshold under S. 203” “To finally conclude, the answer to question No. (ii) is rendered in the negative. It is held that on the language of S. 204, on principle and on precedent, the issue of process against an accused under the said section after cognizance by the Magistrate is in no way identical with and consequently is not shackled by the specific requirements mandated in S. 203 of the Code for the dismissal of a complaint”. Hence, held that the ratio decided A.I.R. 1929 Patna, 473 (supra) still hold the field and decision reported in 1979 B.B.C.J., 293 (supra) stands over ridden. The reliance of the petitioners on decision 1998(1) B.L.J.R., 192 (supra) while considering the case on complaint, the Magistrate looked into the case diary to discuss the complaint on ground that statement recorded in case diary was considered is not applicable to the fact and circumstances of the case as in fact and circumstances of the complaint dismissed on the perusal of case diary whereas the ration decided in Full Bench decision that while dismissing the complaint under Section 203 of the Criminal Procedure Code the Magistrate can not looked into the case diary, but, has to dismiss the complaint only on material collected by examination of the complainant on solemn affirmation and statement of the witnesses on oath or the material collected, if any, during the enquiry or investigation under Section 202 of the Criminal Procedure Code and no other material, hence, the decision though stand, but, not applicable to fact where instead of dismissing the case the cognizance has been taken under Section 204 of the Criminal Procedure Code and which exercising Patna High Court Cr.Misc. No.37073 of 2012 (4) dt.14-08-2013 jurisdiction under Section 204 of the Criminal Procedure Code the Magistrate has jurisdiction to see the case diary as the cognizance under Sections 190(1)(a), (b) and (c) of the Criminal Procedure Code are not exclusive. Hence, once, the legal position established that for issuing process under Section 204 of the Criminal Procedure Code, on a complaint, the Magistrate has jurisdiction to look into the material in case diary as for taking cognizance under Section 190 of the Criminal Procedure Code the provision of sub sections 1(a), (b) and (c) are not exclusive or hermitally sealed, the, I do not find the impugned order suffering from any infirmity to interfere with. Hence, I do not find any merit to interfere with the impugned order. This application is dismissed. (Gopal Prasad, J) SA/-