Tarini Sen Das and ors. Vs. State of Bihar and anr. - Court Judgment

Excerpt:
criminal procedure code, 1973, sections 200, 202, 190(1)(b), 204, 161 and 482 - penal code, 1860--sections 302/34 and 201--murder--submission of final report by police--protest petition by o.p. no. 2 (informant)--cognizance taken by c.j.m. after perusing protest petition and case-diary--specific allegations against petitioners by eye-witness to occurrence for committing overt act--magistrate can take cognizance even on the basis of evidence collected by i.o. under section 161, though police submitted final report showing mistake of fact--of course, after submission of final report, magistrate can issue process under section 204 after recording statement of complainant and his witnesses, but there was no bar in issuance of process under section 204 after perusing evidence collected by i.o. under section 161--magistrate not bound to follow procedure laid down in sections 200 and 202 for taking cognizance--and he can take cognizance on the basis of evidence on the diary ignoring conclusion arrived at by i.o.--as the magistrate took cognizance after perusing diary and applying judicial mind by impugned order, not required to be interfered with--no illegality in impugned order--hence, application liable to be dismissed. - - it is also submitted that the magistrate is not bound to examine the complainant or witnesses, though the protest petition was filed by the informant and he is quite competent to take cognizance on the evidence collected in the diary as well as there is a specific and direct allegation against all the petitioners/accused-persons for committing murder as the bhabhi of the informant is the eye-witness of the said occurrence and this fact has been specifically mentioned in the fir itself, which is sufficient for taking cognizance. 10. it is well settled that the magistrate can take cognizance even on the basis of evidence collected by the investigating officer under section 161, cr. and it has been clearly held by the apex court that the magistrate is not bound to follow the procedure laid down in sections 200 and 202 of the code of criminal procedure for taking cognizance and he can take cognizance on the basis of the evidence on the diary ignoring the conclusion arrived at by the investigating officer. deoki nandan prasad, j.1. this application under section 482 of the code of criminal procedure has been filed by the petitioners/accused-persons for quashing of the order dated 9.11.1998, whereby and whereunder the learned chief judicial magistrate took cognizance for the offence under sections 302/34 and 201 of the indian penal code in connection with g.r. case no. 1523 of 1997 corresponding to potka ps case no. 56 of 1997.2. the prosecution case in brief as alleged that one ratanlal das lodged an f.i.r. alleging therein that one susan kewat informed him that his brother gangadhar das died in the night due to fall of the wall and his dead body is lying at jadogoda hospital. on this information, he went to jamshedpur and after postmortem, he came back to the village. thereafter, the dead body was cremated. it is further alleged that after completion of funeral ceremony, one dhan singh dutta disclosed that his brother actually was killed by the petitioners and his death did not occur due to fall of the wall. thereafter, the informant enquired from his bhabhi who was scared and she narrated the incident that on 5.8.1997 at p.m. the accused-persons/petitioners had murdered and his brother (deceased) was also raising alarm at that time. one dilip kewat also raised hulla and thereafter she went there and saw that the petitioners, bijay manjhi and kuna das caught hold of dilip kewat and other accused-persons were assaulting his brother. the petitioner rabi kinkar das was pressing the neck and other accused-persons were assaulting with boulder, thereafter, his bhabhi started crying but she was taken forcibly to the room and the accused-persons also threatened that she along with her children would also be killed, if raised hulla. thereafter, the f.i.r. was lodged.3. the police investigated the case and after investigation the police submitted final report showing 'mistake of fact'. the opposite party no. 2/informant had filed a protest petition in the court below claiming therein that the investigation has not been done properly and even in such a serious offence, the police has not arrested any of the accused-persons, nor any proper step was taken by the police.4. after perusing the protest petition and the case diary, the learned chief judicial magistrate took cognizance by the impugned order.5. the learned counsel appearing on behalf of the petitioners submitted that the learned magistrate committed error in taking cognizance and he has not applied his judicial mind. it is further argued that the learned court below has not examined the complainant nor inquiry was made as required under sections 200/202, cr.p.c. it is further submitted that the learned court below took cognizance against the petitioners on the materials available in the final form which is illegal and bad in law as well as without examining the complainant and witnesses the cognizance is illegal and liable to be quashed.the leaned counsel appearing on behalf of the petitioners also relied upon the cases 1994 (2) east cr. cases 502 (patna) anil kumar singh v. state of bihar and ors. and : 1978crilj8 tula ram and ors. v. kishore singh.6. on the other hand, the learned counsel appearing on behalf of the opposite party contended before me that there is no illegality in the impugned order as the learned magistrate has taken cognizance after perusing the diary and he has applied his judicial mind. it is also submitted that the magistrate is not bound to examine the complainant or witnesses, though the protest petition was filed by the informant and he is quite competent to take cognizance on the evidence collected in the diary as well as there is a specific and direct allegation against all the petitioners/accused-persons for committing murder as the bhabhi of the informant is the eye-witness of the said occurrence and this fact has been specifically mentioned in the fir itself, which is sufficient for taking cognizance.the learned counsel for the opposite party also relied upon a case reported in 1989 east cr. cases 424 (s.c).7. from perusal of the f.i.r. itself, it is clear that the informant's bhabhi is said to be the eye-witness of the occurrence and she narrated the incident specifically and there is a specific allegation against the petitioners for committing overt act. it is also not clear from the impugned order that the learned magistrate took cognizance after perusing the written report of the informant and case diary. from perusal of the injury report as indicted in para-34 and 35 of the diary, the deceased sustained ante-mortem injuries caused by hard blunt substance. there appears sufficient evidence against the petitioners for the alleged offence.8. it has been held in the case reported in 1989 east cr. cases 425 (s.c.) that 'a magistrate is entitled to take cognizance of an offence under section 190(1)(b) of the code of criminal procedure even if the police report is to the effect that no case is made out against the accused. the magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case. the magistrate is not bound in such situation to follow the procedures laid down in sections 200 and 202, cr.p.c. for taking cognizance of a case under section 190(1)(a), though it is open to him to act under section 200 or section 202, cr.p.c.9. in the instant case, it is true that a protest petition was filed by the informant doubting about the fairness and impartiality of the investigating officer but the learned magistrate applied his judicial mind and took cognizance by perusing the diary as he has gone through the injury report as mentioned in the diary.10. it is well settled that the magistrate can take cognizance even on the basis of evidence collected by the investigating officer under section 161, cr.p.c. though the police submitted final report showing mistake of fact. moreover, there is eye-witness also in the instant case about the occurrence. the facts of the cases relied upon by the counsel for the petitioners are quite distinguishable. in the case of 1994 (2) east cr. cases, 502, it was found that the police submitted final report after investigation when a protest petition was filed in the court below and the court below rejected protest-cum-complaint petition and accepted the final report without following the procedure under sections 200 and 202, cr.p.c.in the case reported in : 1978crilj8 , it was held that the magistrate can issue process under section 204, cr.p.c. after recording the statement of complainant and his witnesses if the final report, is submitted by the police after investigation.11. it is true that after submission of final report the magistrate can issue process under section 204, cr.p.c. after recording statement of complainant and his witnesses, but there is no bar in issuance of process under section 204, cr.p.c. after perusing the evidence collected by the investigating officer under section 161, cr.p.c. and it has been clearly held by the apex court that the magistrate is not bound to follow the procedure laid down in sections 200 and 202 of the code of criminal procedure for taking cognizance and he can take cognizance on the basis of the evidence on the diary ignoring the conclusion arrived at by the investigating officer.12. the learned magistrate apparently took cognizance after perusing the diary and applying the judicial mind by the impugned order, which does not require to be interfered and there appears no illegality in the order impugned.13. in the result, i do not find any merit in the application, which is accordingly dismissed.

Judgment:

Deoki Nandan Prasad, J.

1. This application under Section 482 of the Code of Criminal Procedure has been filed by the petitioners/accused-persons for quashing of the Order dated 9.11.1998, whereby and whereunder the learned Chief Judicial Magistrate took cognizance for the offence under Sections 302/34 and 201 of the Indian Penal Code in connection with G.R. Case No. 1523 of 1997 corresponding to Potka PS Case No. 56 of 1997.

2. The prosecution case in brief as alleged that one Ratanlal Das lodged an F.I.R. alleging therein that one Susan Kewat informed him that his brother Gangadhar Das died in the night due to fall of the wall and his dead body is lying at Jadogoda hospital. On this information, he went to Jamshedpur and after postmortem, he came back to the village. Thereafter, the dead body was cremated. It is further alleged that after completion of funeral ceremony, one Dhan Singh Dutta disclosed that his brother actually was killed by the petitioners and his death did not occur due to fall of the wall. Thereafter, the Informant enquired from his Bhabhi who was scared and she narrated the incident that on 5.8.1997 at p.m. the accused-persons/petitioners had murdered and his brother (deceased) was also raising alarm at that time. One Dilip Kewat also raised hulla and thereafter she went there and saw that the petitioners, Bijay Manjhi and Kuna Das caught hold of Dilip Kewat and other accused-persons were assaulting his brother. The petitioner Rabi Kinkar Das was pressing the neck and other accused-persons were assaulting with boulder, Thereafter, his Bhabhi started crying but she was taken forcibly to the room and the accused-persons also threatened that she along with her children would also be killed, if raised hulla. Thereafter, the F.I.R. was lodged.

3. The police investigated the case and after investigation the police submitted final report showing 'mistake of fact'. The Opposite party No. 2/Informant had filed a Protest petition in the Court below claiming therein that the investigation has not been done properly and even in such a serious offence, the police has not arrested any of the accused-persons, nor any proper step was taken by the police.

4. After perusing the Protest petition and the case diary, the learned Chief Judicial Magistrate took cognizance by the impugned order.

5. The learned Counsel appearing on behalf of the petitioners submitted that the learned Magistrate committed error in taking cognizance and he has not applied his judicial mind. It is further argued that the learned Court below has not examined the complainant nor inquiry was made as required under Sections 200/202, Cr.P.C. It is further submitted that the learned Court below took cognizance against the petitioners on the materials available in the Final Form which is illegal and bad in law as well as without examining the complainant and witnesses the cognizance is illegal and liable to be quashed.

The leaned Counsel appearing on behalf of the petitioners also relied upon the cases 1994 (2) East Cr. Cases 502 (Patna) Anil Kumar Singh v. State of Bihar and Ors. and : 1978CriLJ8 Tula Ram and Ors. v. Kishore Singh.

6. On the other hand, the learned Counsel appearing on behalf of the Opposite Party contended before me that there is no illegality in the impugned order as the learned Magistrate has taken cognizance after perusing the diary and he has applied his judicial mind. It is also submitted that the Magistrate is not bound to examine the complainant or witnesses, though the Protest petition was filed by the Informant and he Is quite competent to take cognizance on the evidence collected in the diary as well as there is a specific and direct allegation against all the petitioners/accused-persons for committing murder as the Bhabhi of the Informant is the eye-witness of the said occurrence and this fact has been specifically mentioned in the FIR itself, which is sufficient for taking cognizance.

The learned Counsel for the Opposite Party also relied upon a case reported in 1989 East Cr. Cases 424 (S.C).

7. From perusal of the F.I.R. itself, it is clear that the Informant's Bhabhi is said to be the eye-witness of the occurrence and she narrated the incident specifically and there is a specific allegation against the petitioners for committing overt act. It is also not clear from the impugned order that the learned Magistrate took cognizance after perusing the written report of the Informant and case diary. From perusal of the Injury report as indicted in para-34 and 35 of the diary, the deceased sustained ante-mortem injuries caused by hard blunt substance. There appears sufficient evidence against the petitioners for the alleged offence.

8. It has been held in the case reported in 1989 East Cr. Cases 425 (S.C.) that 'a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code of Criminal Procedure even if the police report is to the effect that no case is made out against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the Investigation and take cognizance of the case. The Magistrate is not bound in such situation to follow the procedures laid down in Sections 200 and 202, Cr.P.C. for taking cognizance of a case under Section 190(1)(a), though it is open to him to act under Section 200 or Section 202, Cr.P.C.

9. In the instant case, it is true that a Protest Petition was filed by the Informant doubting about the fairness and impartiality of the Investigating Officer but the learned Magistrate applied his judicial mind and took cognizance by perusing the diary as he has gone through the injury report as mentioned in the diary.

10. It is well settled that the Magistrate can take cognizance even on the basis of evidence collected by the Investigating Officer under Section 161, Cr.P.C. though the police submitted final report showing mistake of fact. Moreover, there is eye-witness also in the instant case about the occurrence. The facts of the cases relied upon by the Counsel for the petitioners are quite distinguishable. In the case of 1994 (2) East Cr. Cases, 502, it was found that the police submitted final report after investigation when a protest petition was filed in the Court below and the Court below rejected Protest-cum-Complaint petition and accepted the final report without following the procedure under Sections 200 and 202, Cr.P.C.

In the case reported in : 1978CriLJ8 , it was held that the Magistrate can issue process under Section 204, Cr.P.C. after recording the statement of complainant and his witnesses if the final report, is submitted by the police after investigation.

11. It is true that after submission of final report the Magistrate can issue process under Section 204, Cr.P.C. after recording statement of complainant and his witnesses, but there is no bar in issuance of process under Section 204, Cr.P.C. after perusing the evidence collected by the Investigating Officer under Section 161, Cr.P.C. and it has been clearly held by the apex Court that the Magistrate is not bound to follow the procedure laid down in Sections 200 and 202 of the Code of Criminal Procedure for taking cognizance and he can take cognizance on the basis of the evidence on the diary ignoring the conclusion arrived at by the Investigating Officer.

12. The learned Magistrate apparently took cognizance after perusing the diary and applying the judicial mind by the impugned order, which does not require to be interfered and there appears no illegality in the order impugned.

13. In the result, I do not find any merit in the application, which is accordingly dismissed.