Sahibganj v. The State of Jharkhand
Case Details
1 Cr.M.P. No.2966 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2966 of 2022 Rabiul Shikh, Aged about 39 years, son of Late Syinesh Sk, Resident of village –Dakshin Begumganj Singh Tola, Post Office –Begumganj, Police Station –Rajmahal, District -Sahibganj .... Petitioner Versus The State of Jharkhand …. Opp. Party
Legal Reasoning
P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State : Mr. Raja Ravi Shekhar Singh, Advocate : Mrs. Nehala Sharmin, Spl. P.P. ….. By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 10.02.2020, passed by the learned Judicial Magistrate -1st Class, Rajmahal in connection with Radhanagar P.S. Case No. 116 of 2017(S), corresponding to G.R. No. 818 of 2017, pending in the court of Judicial Magistrate -1st Class, Rajmahal. 3. The brief facts of the case is that the petitioner was the named accused of the said case. Police after investigation submitted charge sheet against the co-accused persons but did not sent up the petitioner for trial because of lack of evidence against him. The learned Magistrate vide order dated 10.02.2020 took note of the fact that the petitioner has not been sent up for trial but differing with the charge sheet submitted by the police, just mentioned that prima facie case is made out for the offence punishable under 4. 5. 2 Cr.M.P. No.2966 of 2022 Section 341/323/324/504/307/302/34 of the Indian Penal Code against the petitioner as well without mentioning as to what are the materials, basing upon which the learned Magistrate differed from the charge sheet nor there is any material in the record to suggest that there is any application of mind of the learned Magistrate in passing the said order and taking cognizance against the petitioner as well. The learned counsel for the petitioner submits that since no reason has been assigned by the learned Magistrate for differing with the finding of the investigating officer, hence the impugned order is not sustainable in law. In support of his contention, the learned counsel for the petitioner relies upon the Judgment of a Co-ordinate Bench of this Court in Cr.M.P. No. 1782 of 2016 in the case of Ramesh Murmu Vs. The state of Jharkhand, dated 11.04.2017 wherein, the Co- ordinate Bench has reiterated the settled principle of law that the Magistrate is not bound by the police report and independently the Magistrate has to apply his mind to arrive at a conclusion, whether cognizance has to be taken or not after receipt of the police report and at the time of taking cognizance, the Magistrate should apply his mind. Hence, it is submitted that the impugned order dated 10.02.2020, passed by the learned Judicial Magistrate - 1st Class, Rajmahal in connection with Radhanagar P.S. Case No. 116 of 2017(S), corresponding to G.R. No. 818 of 2017 be quashed and set aside, qua the petitioner only. 3 Cr.M.P. No.2966 of 2022 6. The Learned Spl. P.P. on the other hand vehemently opposes the prayer for quashing of the order dated 10.02.2020, passed by the learned Judicial Magistrate -1st Class, Rajmahal in connection with Radhanagar P.S. Case No. 116 of 2017(S), corresponding to G.R. No. 818 of 2017 qua the petitioner only. It is next submitted by the learned Spl. P.P. that since there are serious offences involved in this case, the order taking cognizance against the petitioner ought not be quashed. 7. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Nupur Talwar Vs. Central Bureau of Investigation and Another, reported in (2012) 11 SCC 465 para -23 of which reads as under:- “23. In the circumstances mentioned hereinabove, it was befitting for the Magistrate to pass a well-reasoned order, explaining why she was taking a view different from the one prayed for in the closure report. It is also expedient for the Magistrate to record reasons why the request made by the complainant (Dr Rajesh Talwar) praying for further investigation, was being declined. Even the fact, that the complainant (Dr Rajesh Talwar) was being summoned as an accused, necessitated recording of reasons. An order passed in the circumstances noted hereinabove, without outlining the basis therefor, would have been injudicious. Certainly the Magistrate’s painstaking effort needs a special commendation.” (Emphasis supplied) That in case a Magistrate takes a view different from the one prayed for in the closure report, the Magistrate has to pass a well- reasoned order or else such an order would be injudicious. 8. Now coming to the facts of the case, though the Magistrate in the order dated 10.02.2020 has categorically mentioned that the petitioner has not been sent up for trial yet, mechanically, without 4 Cr.M.P. No.2966 of 2022 assigning any reason or discussing the materials, as to on what basis, it takes a view different from the one mentioned in the charge sheet wherein it has been categorically stated that there is lack of evidence against the petitioner, has taken cognizance against the petitioner as well. 9. Under such circumstances, this Court is of the considered view that the order taking cognizance against the petitioner as well is not sustainable in law and continuation of the said order would amount to abuse of process of court and this is a fit case where in the interest of justice, the order dated 10.02.2020, taking cognizance against the petitioner as well is required to be quashed and set aside. 10. Accordingly, the order dated 10.02.2020, passed by the learned Judicial Magistrate -1st Class, Rajmahal in connection with Radhanagar P.S. Case No. 116 of 2017(S), corresponding to G.R. No. 818 of 2017, pending in the court of Judicial Magistrate -1st Class, Rajmahal is quashed and set aside qua the petitioner only. 11. The matter is remitted to the learned Judicial Magistrate -1st Class, Rajmahal to pass a fresh order if it so likes in respect of cognizance against the petitioner if material is available in the record, by passing a fresh reasoned order. 12.
Decision
In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 13th June, 2023 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.)