Raj Khan, aged about 29 years, S/o Late Bholu Khan, R/o Village Karimganj, Wasseypur v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1689 of 2019 ------ Raj Khan, aged about 29 years, S/o Late Bholu Khan, R/o Village Karimganj, Wasseypur, P.O. & P.S. Bank More, District Dhanbad Versus The State of Jharkhand … Opposite Party … Petitioner For the Petitioner For the State
Legal Reasoning
coordinate bench of this court in the case of Sandhya Rani Mehta vs. State of 2 Cr. M.P. No.1689 of 2019 Jharkhand through C.B.I. passed in Cr. Misc. Petition No.1149 of 2009 dated 16.04.2014 wherein, the coordinate bench, in the facts of that case relying upon the judgment of the Hon’ble Supreme Court of India in the case of Dharam Pal vs. State of Haryana reported in (2013) 3 EastCrC 307, Rajendra Prasad vs. Bashir & Others reported in (2001) 8 SCC 522 and Uma Shankar Singh vs. State of Bihar & Another reported in (2010) 4 EastCrC 97 has summarized the law when an accused is not sent up for trial along with other, what would be the role of the Magistrate, if subsequently police after completion of investigation, do not send up the accused persons against whom investigation continued, after submission of the charge-sheet against some of the accused persons, as under in paragraph-11 and 12 of the said judgment:- “11. Thus, it does appear that the Hon’ble Court has been pleased to lay down law that if any accused is not sent up for trial along with other accused, the Magistrate can take cognizance of the offence only against the person charge sheeted and not against the person not sent up for trial whose name gets included in column 2 of the report. But at the same time, Hon’ble Court has said that in spite of that, it is not that the Magistrate does not have power to do anything, rather the course which would be left with him is to commit the case to the court of sessions and it be left with the sessions court to take cognizance against them. 12. Thus, the position which has emerged out is that if a case is registered for the offence/ offences triable by the court of session against two or more accused persons and the charge sheet is submitted against some of them and rest are not sent up for trial, then the Magistrate does have power to take cognizance of the offence only against the person charge sheeted. However, the court is further required to find out whether materials are there or not against the persons not sent up for trial to be taken by the sessions court. If the court does find prima facie material to proceed with the trial, he needs to commit the case to the court of sessions.” (Emphasis supplied) 6. It is submitted that the learned Magistrate has committed an illegality by taking cognizance of the matter for the second time which is illegal and 3 Cr. M.P. No.1689 of 2019 perverse. This learned counsel for the petitioner lastly submits that the prayer as prayed for in this Cr.M.P. be allowed. 7. The learned Addl.P.P. on the other hand vehemently opposes the prayer made by the petitioner in this Cr.M.P. and submits that the petitioner has misinterpreted the impugned order dated 17.09.2018 passed by the learned Chief Judicial Magistrate, Dhanbad in connection with Bank More P.S. Case No.195 of 2017 corresponding to G.R. Case No.3224 of 2017. The learned Addl.P.P. further submits that nowhere in the said order, the learned Chief Judicial Magistrate, Dhanbad has taken cognizance and the petitioner has made a false statement in this Cr.M.P. that by the said order, the learned Chief Judicial Magistrate, Dhanbad has taken cognizance for the second time. It is next submitted by the learned Addl.P.P. that what all the Chief Judicial Magistrate has done in the said order is that upon finding prima facie material to proceed with the trial, he has only sent the supplementary case record to the court of the learned Additional Sessions Judge-XII, Dhanbad and the same is in terms of the settled principle of law reiterated by the coordinate bench in the case of Sandhya Rani Mehta vs. State of Jharkhand through C.B.I. (Supra). Hence, it is submitted that this Cr.M.P. being without any merit be dismissed. 8. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, this Court finds force in the submission of the learned Addl.P.P. which is contrary to the averments made in this Cr.M.P, by the petitioner. The perusal of the records reveals that the learned Judicial Magistrate, Dhanbad in the said impugned order dated 17.09.2018 has not taken cognizance for the second time. He has, just upon consideration of the materials in the record, has found prima facie material to 4 Cr. M.P. No.1689 of 2019 proceed against the petitioner and the co-accused Raju Khan as well for trial. Therefore, the learned Chief Judicial Magistrate, has just recorded that cognizance has already been taken on 04.12.2017 and he has sent supplementary case record to the court of the learned Additional Sessions Judge-XII, Dhanbad. Thus in the considered opinion of this Court, the same is in accordance with law in view of the principle of law reiterated by the coordinate bench of this court in the case of Sandhya Rani Mehta vs. State of Jharkhand through C.B.I. (Supra). Therefore, no illegality is involved in the impugned order passed by the learned Chief Judicial Magistrate, Dhanbad dated 17.09.2018, and in fact, it is a misconception on behalf of the petitioner that the learned Chief Judicial Magistrate, Dhanbad has taken cognizance for the second time which is a misnomer. 9. Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed. 10. In view of the disposal of the Cr.M.P., interim relief granted earlier vide order dated 20.11.2019 stands vacated. 11. Registry is directed to intimate the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 22nd of August, 2024 AFR/ Saroj 5 Cr. M.P. No.1689 of 2019
Arguments
: Mr. Lukesh Kumar, Advocate : Mr. Achinto Sen, Addl.P.P. ------ ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order taking cognizance dated 17.09.2018 in connection with Bank More P.S. Case No.195 of 2017 corresponding to G.R. Case No.3224 of 2017 passed by the learned Chief Judicial Magistrate, Dhanbad whereby and where under police submitted Final Form against two of the accused persons of the case against whom investigation was going on and charge-sheet was already submitted against the rest of the three accused persons of the case. The learned Chief Judicial Magistrate, Dhanbad has sent the supplementary case record to the court of Additional Sessions Judge.XII, Dhanbad for further proceeding as the original case record was pending before that court. 3. The brief facts of the case is that in Bank More P.S. Case No.195 of 2017, police after investigation of the case submitted charge-sheet against the three 1 Cr. M.P. No.1689 of 2019 accused persons namely Jishan Khan, Altaf Khan and Afzal Aman for having committed the offences punishable under Section 302, 34 of the Indian Penal Code and 27 of the Arms Act, keeping the investigation pending against the petitioner of the case namely Raj Khan and another co-accused person namely Raju Khan. 4. Vide order dated 04.12.2017, the learned Chief Judicial Magistrate, Dhanbad took up cognizance of the offence punishable under Section 302, 34 of the Indian Penal Code and transferred the case to the court of the learned Judicial Magistrate-1st Class, Dhanbad for committing the case to the court of Sessions in accordance with law. Since the investigation was pending against the Raj Khan and Raju Khan, a supplementary case record was opened. It appears that the learned Judicial Magistrate-1st Class, Dhanbad committed the case to the court of Sessions and ultimately the same was transferred to the court of the learned Additional Sessions Judge-XII, Dhanbad for trial. When the matter stood thus, police submitted Final Form against the petitioner namely Raj Khan and Raju Khan upon completion of the investigation which was going on against them. A protest petition was filed on behalf of the informant. The learned Magistrate found prima facie material against the petitioner and Raju Khan to proceed with trial against them, though they were not sent up for trial by the police in the final report. Hence, the learned Magistrate sent the supplementary case record to the court of the learned Additional Sessions Judge-XII, Dhanbad for further proceeding with the original case record pending before that court. 5. Learned counsel for the petitioner relies upon the judgment of