Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1549 of 2015 --- Md. Ekram, son of late Kazim Mian @ Ali, resident of village Bundu Masjid Tola, P.O. & P.S. Peterwar, District Bokaro … … Petitioner Versus The State of Jharkhand … … Opp. Party --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Petitioner : Mr. A. K. Kashayp, Sr. Advocate For the Respondent : Mr. Deepak Kumar, A.P.P. --- 02/09.03.2016 Heard Mr. A. K. Kashayp, learned senior counsel appearing for the petitioner and Mr. Deepak Kumar, learned A.P.P. for the State.
2. In this application, the petitioner has prayed for quashing that part of the order dated 10.02.2015 passed by the learned Judicial Magistrate, 1st Class, Bermo at Tenughat in connection with Peterwar P. S. Case No. 132 of 2014 whereby and whereunder cognizance has been taken apart from Sections 323, 341, 504, 506 of the Indian Penal Code, also under Section 354 of the Indian Penal Code.
3. A First Information Report was instituted on 22.10.2014 in which it was alleged that while the informant was returning after getting her eye checked, petitioner suddenly appeared and tried to outrage her modesty. It has also been alleged that on raising alarm the petitioner had assaulted the informant.
4. Based on the aforesaid allegations, Peterwar P. S. Case No. 132 of 2014 was registered only for the offence punishable under Section 354 of the Indian Penal Code.
5. After investigation charge-sheet was submitted against the petitioner for the offences punishable under Sections, 323, 341, 504, 506 of the Indian Penal Code and so far as the allegation under Section 354 of the Indian Penal Code is concerned, the same was not found proved. The learned Judicial Magistrate vide order dated 10.02.2015 after perusal of the case diary as well as the charge-sheet was pleased to take cognizance for the offences punishable under Sections 354, 323, 341, 504, 506 of the Indian Penal Code. Against the order taking cognizance, the petitioner has preferred a revision in Criminal Revision No. 26 of 2015 which was dismissed vide order dated 07.07.2015. -2- 6. Mr. A. K. Kashyap, learned senior counsel appearing for the petitioner, has submitted that the impugned order dated 10.02.2015 deserves to be quashed merely on the ground that no reasons have been assigned by the learned Judicial Magistrate while differing with the charge-sheet submitted by the Police in which the allegation levelled under Section 354 of the Indian Penal Code was not found proved. It has also been submitted that revisional court did not consider this aspect of the matter and infact had based its findings on the medical report and had ignored the other evidences which would go to show that the petitioner has not committed an offence under Section 354 of the Indian Penal Code.
7. Mr. Deepak Kumar, learned A.P.P., on the other hand, has referred to the charge-sheet and has submitted that initially recommendation was made for submitting charge-sheet for the offences punishable under Section 354 of the Indian Penal Code also but subsequently the entire case records were supervised once again and, thereafter the charge-sheet was submitted under Sections 323, 341, 504, 506 of the Indian Penal Code. Learned counsel submits that the learned Judicial Magistrate is well equipped to differ with the police report and he had rightly taken cognizance under Section 354 of the Indian Penal Code as the initial supervising authority had opined for filing charge-sheet under Section 354 of the Indian Penal Code also. It has further been submitted that the learned revisional court had perused the entire records and has, thereafter, come to the conclusion that no error has been committed by the learned Magistrate in his order dated 10.02.2015 and in such circumstance, therefore, the present application is liable to be dismissed.
8. It is not in dispute that initially a finding was given by the Investigating Officer in which the case was found to be true for the offences punishable under Sections 354, 323, 341, 504 of the Indian Penal Code. The charge-sheet further reveals that on the oral orders of the higher police official the investigation records were once again supervised and pursuant to same charge-sheet was submitted only under Sections 323, 341, 504, 506 of the Indian Penal Code. -3- 9. The earlier supervision and the subsequent supervision which had left out Section 354 of the Indian Penal Code could never be a ground for taking cognizance under Section 354 of the Indian Penal Code without assigning any reasons. The impugned order dated 10.02.2015 reveals that only on perusal of the case diary, charge-sheet as well as First Information Report cognizance was taken for the offence punishable under Section 354 of the Indian Penal Code also. The evidences which may have formed the opinion of the learned Magistrate to differ with the police report is conspicuously absent in the impugned order dated 10.02.2015. No doubt it is true that the learned Magistrate can differ with the final form if sufficient evidences have cropped up in course of investigation but the same has to be reflected in the order taking cognizance.
10. The revisional order dated 07.07.2015 passed in Criminal Revision No. 26 of 2015 has affirmed the order dated 10.02.2015 by himself assuming the jurisdiction of a cognizance taking court. The learned revisional court if it was of the view that no reasons have been assigned by the learned Magistrate while taking cognizance for the offence punishable under Section 354 of the Indian Penal Code should have remanded the matter back to the learned Magistrate for taking a fresh decision in accordance with law but he has gone through the investigation report and has, thereafter come to a conclusion that the learned Magistrate was not in error in taking cognizance for the offences punishable under Section 354 of the Indian Penal Code.
11. The finding of the learned revisional court with respect to the impugned order dated 10.02.2015 does not substantiate or reflect what has been stated in the impugned order dated 10.02.2015. In such circumstance, therefore, neither the order dated 07.07.2015 passed in Criminal Revision No. 26 of 2015 nor the order dated 10.02.2015 passed by the learned Magistrate in Peterwar P. S. Case No. 132 of 2014 is in accordance with law and accordingly both are quashed and set aside so far as the cognizance with respect to Section 354 of the Indian Penal Code is concerned and the matter is remanded back to the learned Judicial Magistrate, Bermo at Tenughat to pass a fresh order in -4- accordance with law with respect to the offence punishable under Section 354 of the Indian Penal Code only.
12. This application stands disposed of. (R. Mukhopadhyay, J.) Umesh/-