Kamlesh Yadav @ Doma Yadav Vs. the State of Bihar - Court Judgment

Samarendra Pratap Singh, J.

1. Heard the learned Counsel for the parties.

2. Both Cr. Rev. No. 147-09 and No. 477/09 are taken up together, as in both the cases the petitioner and the opposite party are the same and they arise out of the same P.S. case, namely, Hisua P.S. Case No. 116 of 2006, dated 14.12.06 under Sections 147, 148, 149, 323, 324, 307 and 379 of the I.P.C. and Section 27 of the Arms Act to which Section 302 of the I.P.C. was added later on.

3. The main issue in this case is as to whether Magistrate after submission of the chargesheet and cognizance, is competent to make an enquiry with respect to identity of an accused.

4. Before I deal with the issue, the facts are being noticed in brief. The informant, Kamlesh Yadav @ Doma Yadav, lodged an F.I.R. bearing Hisua P.S. Case No. 116/06, under Section 302 and other allied sections of the I.P.C. In the aforesaid F.I.R., eleven persons have been named including one Uma Yadav and Dinesh Yadav both sons of Bacchu Yadav. The police after investigation submitted charge sheet against all the accused persons including Uma Yadav and Dinesh Yadav. Learned C.J.M., Nawadah, vide his order dated 22.6.07 took cognizance of offence and transferred the case to the court of S.D.J.M., Nawadah, for trial. The learned Chief Judicial Magistrate at the time of taking cognizance observed that there was sufficient material for proceeding against Uma Yadav and Dinesh Yadav, both sons of Bacchu Yadav.

5. At the time of taking cognizance, one petition was filed by Uma Yadav claiming that his name is Binesh Yadav @ Binesh Kumar and Uma Yadav is alias name of his brother, namely, Dinesh Yadav.

6. The accused Uma Yadav filed Cr. Revision No. 1025/07 on the ground that he was not named in the F.I.R. and he was misidentified as Uma Yadav and made an accused in this case. He submits that he does not have any alias name as Uma Yadav. It appears that after some argument learned Counsel sought permission to withdraw the application with liberty to raise a plea of identity before the court below at an appropriate stage. The revision application was accordingly permitted to be withdrawn, with the aforesaid liberty.

7. Thereafter Binesh Yadav filed an application on 11.1.08 before the C.J.M., Nawadah and raised plea of mis-identity. The C.J.M., vide his order dated 13.3.08 transmitted the original record with the miscellaneous record to the Court of S.D.J.M., Nawadah.

8. The petitioner filed a revision application before this Court being Cr.Rev. No. 537/07 against the aforesaid order of C.J.M., transmitting the Misc. Case No. 3/01 alongwith the aforesaid record to the S.D.J.M., for making an enquiry in terms of liberty allowed by this Court to raise the same at appropriate stage. This Court did not interfere with the impugned order dated 13.3.08 as by the aforesaid order the learned C.J.M., Nawadah, merely transmitted the assigned record to S.D.J.M.,Nawadah for completing enquiry.

9. The S.D.J.M. vide his order dt. 17.2.09 started enquiry by referring to the order dt. 17.1.09, passed by this Court on 6.12.07 in Cr. Rev. No. 1025/07.

10. The petitioner has challenged the order dated 17.1.2009 whereby the S.D.J.M., rejected his petition not to proceed with the enquiry regarding issue of identity raised by one of the accused. His main submission is that once cognizance has been taken and the accused concerned have been summoned to face trial, such enquiry is not permissible at committal stage.

11. During pendency of the aforesaid application, the learned Magistrate completed the purported enquiry and passed the order dated 3.3.2009, holding that Dinesh Yadav and Uma Yadav is one person and the same. He further held that Dinesh Yadav and Binesh Kumar are brothers and latter does not have any alias name of Uma Yadav.

12. The learned Counsel for the O.P. submits that the Magistrate made the aforesaid enquiry pursuant to the order dated 6.12.2007 of this Court passed in Cr.Rev. No. 1025 of 2007 filed by Binesh Kumar alias Binesh Yadav against order taking cognizance dated 6.12.2007 and summoning him to face trial under Section 302/34. His main plea was that he has wrongly been identified as Uma Yadav.

13. Now it has to be seen whether this Court directed to make the aforesaid enquiry at committal stage. It would be appropriate to quote the relevant extract of the order itself to settle the controversy.

14. This Court while declining to quash the order taking cognizance observed as follows:

At this stage when this Court confronted the aforesaid matter with relation to gravity of the offence, learned Counsel for the petitioner expressed his readiness to withdraw this application and also prays that liberty be given to raise the plea of identity in the court below at the appropriate stage.

The present application is permitted to be withdrawn giving the petitioner liberty to raise plea relating to identity at the appropriate stage and in that event the court below shall enquire into the matter and came to a conclusion regarding identity after such enquiry as deemed fit and proper by the court below.

15. It would appear from the aforesaid order that this Court had granted liberty to the petitioner, Binesh Kumar to raise the issue of misidentity at appropriate stage. This Court never directed that such enquiry should be made at the stage of committal of the case.

16. The issue thus arises, whether any enquiry regarding mis-identity of an accused is permissible in a sessions triable case at committal stage. In this case chargesheet has been submitted. Cognizance has been taken and summons have been issued under Section 204 of Cr.P.C. for appearance of accused. The next stage is of supply of copy of police report and other documents under Sections 207 and 208 as the case may be. The Magistrate thereafter becomes almost functus officio and has merely to commit the case to the court of sessions, if offence is a sessions triable one. The function is more of ministerial nature and facilator and not of an adjudicator.

17. The issue is whether detailed enquiry regarding misidentity of an accused can be made in a sessions triable case at committal stage.

18. Old Code of 1898 contemplated a full fledged enquiry in committal court after submission of the charge sheet. The prosecution was required to examine all witnesses at the stage of committal. By Act 26 of 1955 Parliament abridged the above procedure and it was provided that in police chargesheeted case only, the witness to the occurrence need be examined in committal court under Section 207A of the Code which was too done away with, in 1973 vide Act 2 of 1974.

19. The Hon'ble apex Court in the case of Raj Kishore Prasad v. the State of Bihar reported in : (1996) 4 SCC 495 observed as follows:

10. The Law Commission beforehand in its 41st Report while recommending change in committed proceeding opined:

(ii) 214. 'Preliminary inquires by Magistrates in cases exclusively triable by the Court of Session are being dispensed with as such an inquiry has served no useful purpose and, on the contrary, it involves a great deal of infructuous work causing delay in the trial of serious cases. The abbreviated form of inquiry provided for by the amendments made in 1955 and contained in Section 207A has been the subject of controversy and opinion is almost unanimous that this procedure while solving no problems, created fresh problems. Preliminary inquiries are, therefore, being dispensed with in cases triable by a Court of Session. However, to perform certain preliminary functions like granting copies, preparing the records, notify the public prosecutor, etc. provision is being made that the Magistrate taking cognizance of the case will perform these preliminary functions and formally commit the case to the court of Session. As regards private complaints in cases triable exclusively by a Court of Session the inquiry into the complaint by the Magistrate under the existing Section 202 will serve the purpose of a preliminary scrutiny' -SOR Gaz. Of India 10-12-1970, Pt. II, Section 2, Extra., P.1309 (1320).

20. The view was expressed above reiterated in the case of Rosy and Anr. v. State of Kerala and Ors. reported in : AIR 2000 SC 637. In the afroresaid case the apex court noticed that Law Commission in its 41st Report recommended for dispensing with the enquiry in committal court as it has not served any purpose rather it caused unnecessary delay in disposal of a case triable by a court of session. The apex Court observed that pursuant to the recommendation, Section 202 Cr.P.C. has been incorporated in its present form. The recommendation of Law Commission quoted in para 22 of the aforesaid Judgment is also reproduced her for easy reference:

While the situation remained thus as provided in Section 207A of the old Code the Law Commission submitted its 41st Report recommending various changes in the code among which it was recommended that inquiries in committal courts should be dispensed with. After giving elaborate reasons for such abolition the Law Commission made the following recommendations also.

We are recommending in a subsequent chapter (referred) to earlier the abolition of commitment inquiries.

This necessities certain amendments in the procedure to be followed in an inquiry into complaints where the offence complained of is one triable exclusively by the Court of Sessions. We recommended that the Magistrate who takes cognizance of such offence on complaint must himself make an inquiry into the complaint, and call upon the complainant to produce all his witnesses and examine them on oath. Further, in such cases the Magistrate should not direct an investigation by a Police office or other person. For this purpose, we propose two amendments of Section 202 in the form of another proviso to Sub-section (1) and a proviso to Sub-section (2).

21. In view of the amendment in 1973 Code dispensing with committal enquiry, there is no provision for making any enquiry regarding identity of an accused against whom summons have been issued under Section 204 Cr.P.C. to face trial of offence exclusively triable by court of Sessions.

22. The only course left open before the accused was to persuade the court to make order for further investigation under Section 173(8) of Cr.P.C. However, the accused instead of chosing the aforesaid course, filed a petition for making an enquiry at the committal stage.

23. The contention of the petitioner that such enquiry is permissible under Section 410 of Cr.P.C. is totally misconceived. Section 410 of Cr.P.C. refers to withdrawal of case by Magistrate. The issue in this case is not of withdrawal of a case from one court to the other, but the issue is one of maintainability of an enquiry of misidentity of an accused, at the stage of committal of case.

24. In the instant case, the Magistrate had called for a police report and had examined the accused, as well as his father and held that Dinesh Yadav @ Uma Yadav is one and the same person and Binesh Yadav @ Binesh Kumar does not have any alias name of Uma Yadav. The impugned order dated 3.3.09 is completely without jurisdiction, as the Magistrate does not have jurisdiction at the stage of committal proceeding to make an enquiry. In appropriate case, if the court finds that matter needs further investigation, he could have directed so.

25. This Court vide its order dated 6.12.07 passed in Cr.Rev. No. 1025/07 has granted liberty to Binesh Yadav @ Binesh Kumar to raise a plea of identity at appropriate stage. The committal proceeding is not an appropriate stage for raising the issue of mis-identity of an accused once after cognizance, summons or warrant has been issued to face trial. The committal stage under Section 209 merely contemplates preparation of records, granting police papers to accused - a function which is a preliminary and ministerial in nature. The Magistrate at this juncture is not required to exercise his judicial mind, but has merely to commit the case to court of sessions after ensuring compliance of non- judicial functions mentioned above. The accused could raise the issue of mis-identity at the stage of trial. He can merely plead at the stage of framing of charge, that no offence is made out against him at all or any particular provision on basis of materials available on record and that he may be discharged accordingly.

26. In the back drop of the aforesaid discussions Cr.Rev. No. 473/09 is allowed and the impugned order dated 13.3.2008 passed by the C.J.M., Nawadah, in G.R. No. 162/06 / Tr. No. 191/08 is set aside.

27. Cr. Rev. No. 147/09 is dismissed as infructuous.