Judgment:
Guman Mal Lodha, J.
1. This application under Section 482 Cr. PC is filed against the order dated 8th July, 1986 passed in Criminal Revision No. 30 of 1986 by the Additional Sessions Judge No. 2, Bharatpur and the order dated 30th June, 1986 passed by Additional Chief Judicial Magistrate No. 2, Bhartpur in Cr. Case No. 109 of 1986 thereby taking cognizance of the offence under Sections 302, 147, 148 and 149, IPC
2. A report was lodged by Badan Singh on 9th September, 1985, which reads as under:
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fuosnu gS fd vkt rkjh[k 9&9&1985 dks 7-30 cts 'kke uckcflag] jkethyky] ljiap ds ;gka ls ?kj tks tk jgk Fkk Arks jkeLo:Ik ds uksgjs ds ikl Nhrjflag] gsew] X;kjlh] izrki] /keZohj] feB~Bu] etjktflag] /keZohj] txnh'k o izdk'k gekjs xkWo ds ftues Nhrjflag us cUnwd] egjktflag ds gkFk es dV~Vk o ckdh;ks ds gkFk ij ykBh] Qjlk] oYyHk Fks rks uckcflag dks X;kjlh] izrki] /kEkZohj] feB~Bu us idM+ fy;k vkSj /kki&eqDdks; ls ekjus yx x;s A Nhrjflag us dgk fd FkIiM+ks ls D;k gksrk gS] NksM+ nks bl lkys dks tku ls [kRe dj nks A Nhrjflag us dgk fd us nks Qk;j fd, rks mu yksxks us uckc dks NksM+ fn;k vkSj egjktflag us uckc dks tku ls ekjus dh xjt ls dV~Vk ls xksyh pykbZ tks uckc ds nkfguh ihB es yxh uckcflag tehu ij fxjk A eS ml le; jkeflag dh nqdku ij chM+h o xksyh [kjhn jgk Fkk A rks eSus mudks dkQh le>k;k exj ugh ekus vkSj xksyh uckc ds ekj nh] ml le; ekSds ij jkethyky ljiap] fuHkZ;flag] gj[kkuflag] jkeflag tkV oxSjg vk x;s vkSj uckc dsk ejk le> dj Nhrj vius vkneh;sk dh okfil ysdj pyk x;k A fQj uckcflag dks [kkV es j[kdj VSDVj es j[kdj Hkjriqj vLirky es HkrhZ djk fn;k A
3. The case was registered vide FIR No. 223 of 1985 under Section 147, 148, 149 and 307 IPC and with the death of Navab the case was converted into offence under Section 302, IPC as well.
4. During the investigation a complaint was filed by Badan Singh in the Court of Additional Chief Judicial Magistrate No. 1 Bharatpur for the offence under Sections 147, 148, 149, 302 and 201, IPC and after recording statement under Section 202, CPC the Magistrate took cognizance against the accused petitioner Nos. 1 to 7.
5. Mr. Dhankar has filed this criminal misc. petition and submitted that once the Police has filed challan and investigation resulted in challan against some of the accused and other accused were not involved and if there after a complaint is considered and accusation against some of the accused are considered and found to be prima facie concerned with the case and cognizance is taken in the same incident then as a result of Section 210, Cr. PC consolidation would result in keeping that case alive against these accused without having been found prima facie concerned in the police challan. The adjudication and conclusion which Mr. Dhankar wants is that these accused against whom Magistrate has taken cognizance in the complaint case would stand discharged impliedly by the process of integration of police case in the complaint case. I am clearly of the view that this view is not acceptable on plain and simple reading of Section 210 Cr. PC which reads as under:
Procedure to be followed when there is a complaint case and police investigation in respect of the same:
(1) When in a case instituted otherwise than on a police report (here in after referred to as a complaint case), it is made to appear to the Magistrate during the course of the inquiry or trial held by him, that an investigation by the Police is in process in relation to the offence which is the subject matter of the inquiry or trial proceedings of such inquiry or trial call for a report on the matter from the Police Officer conducting the investigation;
(2) If a report is made by the investigation Police Officer under Section 175 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report;
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial which was stayed by him, in accordance with the Provision of this Code.
6. From above, it is obvious that the procedure to be adopted would be of a case on a police report and the police report as well as complaint would be consolidated and nothing more. lt would be traversity of justice if the police report is treated giving a veto power to the police to discharge any accused and then Magistrate becomes helpless. It is well known that even of the final report is given, the Magistrate concerned is competent to accept or not to accept it and he can take cognizance against the accused who have been found prima facie concerned with the offence. That being so if after examining the witnesses under Section 202 Cr. PC. Magistrate takes cognizance against some accused who are not made accused by the police and the police report is consolidated or both are integrated than the procedure to be adopted on police report under Section 210 Cr. PC and it cannot wipe out the order of the Magistrate taking cognizance. The Magistrate's order would stand on much superior position than that of the police report. After all the police is only the Investigating Agency and the Magistrate is competent to take evidence under Section 202 Cr. PC and if when final report is given then also either to take cognizance against the accused who are not found concerned prima facie by Police or even to redirect the re-investigation or further investigation in the matter. Primacy and supremacy of the Judicial Magistrate would be undermined if the interpretation of Mr. Dhankar is taken and the police report is treated as final and the last word. Such a situation would be inaction of judicial powers and would be giving much more powers to the executive investigating Agency which would be against the spirit of rule of law and supremacy of judiciary in the matter of administration of justice including criminal justice.
7. I have therefore no hesitation in rejecting the application under Section 482 Cr. PC.
8. Mr. Dhanker confronted with the above urged that the Magistrate has directed that the non-bailable warrants should be issued against all the accused because 149, IPC has been invoked although gun shot wound on the person of the deceased was only one and it is alleged that it was by Prakash. His prayer is that the direction of non-bailable warrant should be modified.
9. Mr. Gupta has opposed this prayer so far as Chhittar is concerned. 1 have considered the aspect of the case. So far as Chhittar is concerned his case should be examined for the purpose of bail by a competent court may be the Sessions Judge initially and I would not like to express any opinion except that he stands on a different footing from the other accused. So far as the other accused are concerned Mr. Dhankar's prayer is justified that even without requiring them to get their matters determined by a court granting or refusing bail, at this stage it can be held that they cannot be summoned by non-bailable warrant except Chhittar who may be summoned by non-bailable warrant. His case would be considered for bail by the competent court as and when bail application is moved.
10. The petition is partly accepted to this extent only.
11. Mr. Dhankar undertakes to produce the accused except Chhittar in the court of Additional Judicial Magistrate No. 2, Bharatpur on 5-11-1986.