Acharya Sarvatmananda Avadhuta vs The State Of W.B on 9 September, 2013

[Cites 36, Cited by 5]

Calcutta High Court (Appellete Side)

Acharya Sarvatmananda Avadhuta vs The State Of W.B on 9 September, 2013

In the background of this revision the fact in a nutshell is that the petitioners are peace-loving monastic members of Anandamarga Pracaraca Samgha. One Acharya Dayasekharananda Avadhuta lodged a written complaint with the O.C. of Joypur P.S. through the O.C. of Pundag Investigation Centre on 18.9.2003 at about 17.30 hrs. alleging that the petitioners and others being armed with lathi, tangi, iron rods etc. went to AMIT Hostel and attacked the complainant and 9/10 others and assaulted them with lathi, tangi, 2 iron rods and other weapons due to some serious grudge causing bleeding injuries to Acharya Abhipremananda, Acharya Jyotiprakashananda, Acharya Shayamananda, Acharya Raganugananda, Acharya Susmitananda, Acharya Purnadhiishananda, Acharya Chiradipananda, Acharya Raghbananda. Subsequently, Acharya Abhipremananda succumbed to his injuries on the way to his Ranchi hospital.

On the basis of information Joypur P.S. Case No 18 dated 18.9.03 under Section 147/148/149/325/326/307 IPC and Section 25/27 of the Arms Act was started. The petitioners No. 1 to 7 and others thereafter moved an application under Section 438 of the Code of Criminal Procedure before the learned Vacation Judge, Purulia on 17.10.03 in criminal Misc. Case No. 1136/2003. By order dated 21.10.03 the learned Vacation Judge, Purulia on hearing of both sides allowed the prayer of the petitioners for anticipatory bail.

The petitioners No. 1 to 7 accordingly surrendered before the learned Sub-Divisional Judicial Magistrate, Purulia. It was accepted by the learned Magistrate and 7.11.03 was fixed for further appearance and production of case diary for hearing of bail application. On 12.11.03 the petitioners moved an application under Section 439 of the Code of Criminal Procedure before the learned Sessions Judge, Purulia. In the meantime, on 7.11.03, the defacto-complainant, in Criminal Misc. Case No. 1228 of 2003 filed an application for cancellation of the anticipatory bail granted by the learned Vacation Judge, Purulia in CRM No. 5128/03. On 12.1.04, 3 Their Lordships set aside the order granting anticipatory bail and allowed their prayer for cancellation of anticipatory bail. The petitioners No. 1 to 7 and three others thereafter moved under Section 438 of the Code of Criminal Procedure being CRM No. 632/04 before the Hon'ble court. On 9.2.04, Their Lordships refused prayer for anticipatory bail. Out of the self-same incident, another case has been instituted on the basis of complaint of Acharya Vimuktananda Avadhuta and the same has been registered as Joypur P.S. case No. 37 dated 18.9.2003.

None of the petitioners was in Purulia on the date of incident because they are most responsible members of the governing body, their names have been falsely incorporated in the FIR only to harass them due to long standing group rivalry. Since inception of the case, the petitioner No. 8 made several representations before the S.P., Purulia, O.C., Joypur and Circle Inspector, Baglata regarding the enquiry into the matter and verification of the records with regard to false implication of petitioners 1 to 7 who were not present at the alleged P.O. at the relevant point of time. The S.P. directed the Officer to make thorough inquiry regarding the representation made by petitioner No. 8 who was not named in the FIR.

After completion of investigation, Police submitted report under Section 173 of the Code of Criminal Procedure i.e. the charge- sheet under Section 173 of the Code of Criminal Procedure being No. 53/04 dated 15.11.2004 under Sections 147/148/325/307/302 IPC against 19 accused persons and prayed 4 for discharge of the present petitioners from the case as sufficient evidence could not be collected against them.

The said report under Section 173 of the Code of Criminal Procedure was submitted before the learned Sub-Divisional Judicial Magistrate, Purulia on 25.11.2004 and he was pleased to take cognizance on the same date.

Thereafter the defacto-complainant moved an application containing certain affidavits before the learned SDJM, Purulia challenging the prayer for discharging and prayed for issuance of the process to the petitioners.

In absence of the any material on record/evidence to justify issue of process to the petitioners by an order the learned Sub- Divisional Judicial Magistrate, Purulia was pleased to issue process against the petitioners and issued warrant of arrest against them fixing on 10.2.2005 for E.R. Issuance of process is not a mechanical process to be exercised by the learned Sub-Divisional Judicial Magistrate, Purulia. Because the defacto-complainant named some persons in the FIR out of vendetta. He is to consider whether there is a prima facie case after considering the entire materials on record placed before him. The defacto-complainant named only 13 persons in the FIR but after investigation Police submitted charge-sheet against 19 accused persons and prayed for discharge of 8 persons. Out of 7 of them were named in the FIR. On the basis of statement of some witnesses and supporting documents that the presence of 7 named accused persons in the FIR and the petitioner No. 8 at the alleged 5 place of occurrence during the incident is very much doubtful and in other words the petitioners' contention regarding their innocence have been established during investigation and as such issuance of process by the learned Sub-Divisional Judicial Magistrate, Purulia by the order impugned is nothing but an outcome of total non- application of judicial mind which is not sustainable in law and is liable to be set aside.

The bounden duty of the learned Magistrate under the new code where there is no committal proceedings to satisfy himself that there is sufficient materials to proceed against the accused persons ignoring the conclusions arrived at by Police before issuing process which directly invades the right of life and liberty guaranteed by the Constitution of India and as such in the instant case, issuance of process followed by issuance of w/a. by the learned Magistrate is nothing but non-application of judicial mind and the same is required to be quashed. The learned Magistrate should have considered that merely because the case is triable by Sessions Court does not make the act of cognizance/summoning a mechanical act. The learned Sub-Divisional Judicial Magistrate, Purulia most casually issued process against the petitioners because the petitioners No. 1 to 7 were named in the FIR and the some people of rival group made some statements against the petitioners involving them but thorough investigation belied their statements and the version of the FIR maker which is an outcome of malice for wrecking vengeance against the petitioner.

The learned Magistrate failed to appreciate that the uncontroverted allegations made in the FIR and the evidence collected in support of the same during investigation do not disclose the commission of any offence by the petitioners.

The petitioner No. 8 is not named in the FIR. The learned Magistrate ought to have appreciated that in the given situation the present criminal proceedings against the petitioners who are holding high office of Anandamarga Pracaraka Samgha is manifestly attended with mala fide and maliciously attributed against the petitioners thereby injuring their reputation and exposing them to social ridicule with a view to spite them on account of long standing rivalry. The allegations are absurd and improbable and no prudent person can reach just conclusion that there is ground for proceeding.

The learned Counsel for the Petitioner submits that the petitioners were not sent up for trial in the charge-sheet. The learned Magistrate took cognizance on 25.11.2004. Result of the investigation was communicated. After the copy supplied, under Section 209 of the Code of Criminal Procedure the case was required to be committed.

The learned Magistrate is debarred from issuance of process. If cognizance is taken, the learned Magistrate must proceed under Chapter XVI of the Code and then the proper Court may take steps, if necessary, in accordance with Section 319 of the Code of Criminal Procedure. In support of his contention the learned Counsel for the 7 Petitioner submitted a number of decisions before me which are as follows.

In the case of Kishori Singh vs. State of Bihar & Ors. JT 2000 (7) Supreme Court 564 wherein it was held by the Hon'ble Supreme Court that the learned Magistrate could not have issued process against the accused persons not named in charge-sheet though named in FIR and such persons could be arrayed as accused persons in exercise of power under Section 319 of the Code of Criminal Procedure when some evidence or materials on record are brought on record in course of trial.

In the case of Raj Kishore Prasad vs. State of Bihar & Anr. JT (5) Supreme Court 437 the Hon'ble Apex Court held that in regard to Section 209 and Section 319 of the Code of Criminal Procedure the learned Magistrate at the stage of Section 209 is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subtracted to face trial before the learned court of sessions when the case comes after commitment to the learned court of sessions and evidence is recorded, it may then in exercise of powers under Section 319 of the Code of Criminal Procedure on the basis of evidence recorded by it if circumstances warranting proceed against the appellant summoning him for the purpose to stand trial alongwith the accused committed providing him necessary safeguards envisaged under Sub-Section (4) of Section 319 of the Code of Criminal Procedure.

In the case of Ranjit Singh vs. State of Punjab & Anr. AIR 1998 Supreme Court 3148 it was held that the learned Sessions Court has no power to summon additional accused under Section 193 of the Code of Criminal Procedure. Once the Sessions Court take cognizance of the offence pursuant to the committal order, the only stage when the court is empowered to add any other person to the array of accused is after reaching evidence ...... when powers under Section 319 of the Code can be invoked.

In the case of Jile Singh vs. State of U.P. & Ors. 2012 (1) C Cr LR (Supreme Court) 773 it was held that in regard to Sections 200/202/204(i)(b)/209 and 319 of the Code of Criminal Procedure that subsequent issuance of summons the appellant by the order of learned Chief Judicial Magistrate after committal of the case to the learned Sessions Judge resulted in placing the appellant to array of accused before collecting any evidence not permissible. Such power can be exercised by the learned Sessions Judge during the trial if the circumstances so warrants.

The learned Counsel for the defacto-complainant submitted that the exoneration of the accused by the Police is not a bar to the learned Magistrate to take steps. The order dated 15.1.2005 was passed in continuation of order of 2004 passed by the learned Magistrate and there was no illegality. Appreciating the question for prima facie case appearing, the order of the learned Magistrate cannot be called in question. The present petitioner enjoyed the patronage of Police. There is no continuation of proceedings still then. There is drastic change of Magistrate's power in 1973 Code as 9 regards commitment. More than 8 years have gone. Still the S.P. did nothing. The prayer for anticipatory bail was rejected. Still they are free. The learned Magistrate passed order for W.A. There is no illegality in it. After cancellation of bail, the petitioner neither surrendered nor attended the court and they were not taken into custody. Therefore, the learned Counsel for the defacto-complainant submits that there is no illegality in the impugned order.

In support of his contention, learned Counsel for the Opposite Party placed before me the following decisions.

In the case of East India Pharmaceutical Works Ltd. vs. State of W.B. & Anr. (2009) 2 Cal LT 677 (High Court) it was held that "it is essential for a court to apply its mind judicially into evidentiary materials collected by the Police during investigation and come to an independent finding whether the final report after conclusion of investigation by the Police is correct or not. The defacto- complainant neither appearing nor filing any Narazi petition cannot itself be the ground for accepting the final report and discharge the accused persons from the case. In view of the law laid down by the Hon'ble Apex Court it is mandatory that before taking into consideration a final report where the police prays for any discharge of the accused from the case the court concerned must give notice to the informant and provide a reasonable opportunity of hearing at the time of consideration of the final report. It is essential for a court to apply mind judicially into evidentiary materials collected by the Police during investigation and then come to its own independent finding as to whether the conclusion arrived at by the 10 Police after the end of the investigation is correct or not and then to pass necessary order".

In the case of Uma Shankar Singh vs. State of Bihar (2010) 9 SCC 479 it was held that "if the investigation authority is of view that no case is made out against the accused learned Magistrate can apply his mind independently to materials contained in the Police report and take cognizance based thereon under Section 190(1)(b) of the Code of Criminal Procedure".

The learned Magistrate is not bound to accept the final report filed by the investigating agencies under Section 173(2) of the Code and is entitled to issue process against the accused even though by the said authorities without holding any separate enquiry on the basis of Police itself.

In the case of Dhrup Singh vs. State of Bihar (2013) 4 SCC 275 it was held in regard to Sections 190(1)(b) and 319 of the Code of Criminal Procedure that the learned Magistrate has power to disagree with the Police report. The power of learned Magistrate is to issue summons to persons named in the FIR but not in charge- sheet upon independent application of mind by the learned Magistrate to materials on record. Such power, reiterated is not only available under Section 319 but also under Section 190(1)(b) of the Code of Criminal Procedure.

In the case of Mina Kumari & Anr. vs. State of Bihar & Ors. (2006) 2 C Cr LR (Supreme Court) 11 it was held that "the Police submits report that no case was made out against all or any 11 accused but the Magistrate can ignore such report and take cognizance".

In the case of H. S. Bains vs. The State (Union Territory of Chandigarh) it was held that "Police report stated that no case was made out but still the Magistrate can take cognizance and issue process".

The learned Counsel for the State argued that the defacto- complainant was though informed but not heard. Without waiting for arrival of the defacto-complainant the court took cognizance and it is not proper. Issue of process and further inquiry cannot take place simultaneously. So, he submitted that the impugned order may be set aside with the direction to the learned Magistrate to commit the case and then in terms of Section 319 of the Code of Criminal Procedure the court can take steps. In support of his contention the learned counsel for the State cited before me one decision in the case of Kishori Singh vs. State of Bihar (supra) wherein in regard to Section 173 of the Code of Criminal Procedure it was held that at a stage prior to one under Section 319 of the Code of Criminal Procedure the Magistrate cannot issue process against those persons who may have been named in the FIR but not charge-sheeted under Section 173 of the Code of Criminal Procedure.

I have heard the learned Counsel for the parties concerned and considered the materials on record. In the impugned order dated 15.1.2005, it appears that the learned Counsel for the defacto-complainant was heard and he submitted that 5 affidavits 12 have been furnished by the witnesses who have made their statements before the I.O. ventilating the involvement of the accused persons who have not been sent by the I.O. after conclusion of the evidence. He, after considering the decisions, referred before him, and in consultation with the C.D. and hearing the learned Counsel for the parties, issued warrant of arrest against the accused persons.

It further appears that some conflicting views have been taken in different decisions as discussed above. But the matter appears to have been settled once for all in the decision of Dharam Pal vs. State of Haryana & Anr. JT 2013 (10) Supreme Court 572 wherein the Hon'ble Supreme Court observed as follows:

"we are unable to accept the submissions that on receipt of a police report seeing that the case was triable by court of session, the Magistrate had no other function but to commit the case for trial to the court of session which could only resort to Section 319 of the Code to array any other person as accused in the trial.

The effect of such an interpretation would lead to a situation where neither the committing Magistrate would have any control over the persons named in column 2 of the police report nor the Session Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event, the Session Judge ultimately found material against the persons named in column 2 of the police report, the trial would have to be commenced de novo against such persons which would not only lead to duplication of the trial but also prolong the same.

The Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) of the Code of Criminal Procedure. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column No. 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.

If the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Sessions Court.

The Sessions Judge was entitled to issue summons under Section 193 of the Code of Criminal Procedure upon the case being committed to him by the learned Magistrate.

The key words in the Section are that "no court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code". The above provision entails that a case must, first of all, be committed to the Court of Session by the Magistrate. The second condition is that only after the case had been committed to it, could the Court of Session take cognizance of the offence exercising original jurisdiction.

It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the court of session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction.

Even without recording evidence upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial alongwith those already named therein.

We are also unable to accept the submission that the Session Court would have no alternative, but to wait till the stage under Section 319 of the Code of Criminal Procedure was reached, before proceeding against the persons against whom a prima facie case was made out from the materials contained in the case papers sent by the learned Magistrate while committing the case to the Court of Sessions.

The decision in Kishun Singh's case was the correct decision and the learned Sessions Judge, acting as a Court of original jurisdiction, could issue summons under Section 193 on the basis of the records transmitted to him as a result of the committal order passed by the learned Magistrate."

The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a learned Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case 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, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 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 also [India Carat (P) Ltd. vs. State of Karnataka (1989) 2 SCC 132]. The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case.

Therefore, considering the pros and cons of the matter, this being the position, I am of the view that there is nothing wrong in the impugned order dated 15.1.2005 passed by the learned Sub- Divisional Judicial Magistrate, Purulia.

The revision has no merit.

Accordingly, the same stands dismissed.

Urgent certified copy of this judgment and order, if applied for, be given to the parties on priority basis.

(Toufique Uddin, J.)

Unlock Advanced Research with PRISMAI

Calcutta High Court (Appellete Side)