Patna High Court - Orders
Mahendra Prasad Singh & Ors vs The State Of Bihar & Ors on 17 May, 2013
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.22636 of 2012
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1. Mahendra Prasad Singh, son of late Ram Krishna Singh
2. Sanjay Kumar, son of Shri Mahendra Prasad
3. Ribha Singh @ Ribha Devi, wife of Shri Sanjay Kumar
4. Ashutosh Kumar, son of Shri Sanjay Kumar and
5. Anamika, daughter of Shri Sanjay Kumara, all are residents of village
Sonbersa, P.S. Tariyani, district Sheohar (Sitamarhi), at present
residents in the house of Shri Binay Jha, resident of Mohalla Sri
Rampur, Bhagwanpur, P.S. Sadar, district Muzaffarpur
.... Petitionerss
Versus
1. The State Of Bihar
2. Ram Chandra Pd. Singh, son of late Phul Devi Prasad Singh, resident of
village Sonbersa, P.S. Tariyani, district Sheohar (Sitamarhi)
.... Opposite Parties
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Appearance :
For the Petitionerss : Mr. Suraj Narain Prasad Sinha, Sr. Adv. with
Sudha Ambastha & Pushpendra Kr. Singh, Advs.
For the State : Smt. Ansuiya Jaiswal, APP
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CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL ORDER
6 17-05-2013Heard the learned counsel for the petitioners, opposite party no. 2 and the State.
This is an application for quashing the order, dated 11.04.2012, passed in Complaint Case No. 23 of 2011 by Shri Anuraj Kumar Tripathi, Judicial Magistrate, 1st Class, Sitamarhi, by which he has taken cognizance under Sections 147, 323, 379, 504 and 341 of the Penal Code.
There is a complaint, which was filed alleging that on 08.02.2011, at about 06.00 p.m., on the day of Sarswati Puja, a chanda (contribution) of Rs.501/- was demanded by the accused persons and they have abused the complainant as well. It has, further, been alleged that the accused persons have taken out Rs.25,000/- from the pocket of the complainant and when the complainant protested not to play the loud speaker in full volume, Patna High Court Cr.Misc. No.22636 of 2012 (6) dt.17-05-2013 2/6 then, the accused persons abused him. The complainant filed the complainant petition before the Chief Judicial Magistrate and on receipt of the said complaint, the complainant was examined on solemn affirmation on 31.03.2011 and, thereafter, two witnesses were examined on 10.06.2011 and 09.07.2011 respectively and fixed on 05.09.2011 for cognizance. However, by order, dated 05.09.2011, it was ordered on mere perusal of the records a report is required to be called regarding the occurrence from the concerned Police Station and, thereafter, next date was fixed for 23.09.2011 and the case adjourned on four dates, i.e., 24.10.2011, 22.11.2011, 22.12.2011, 22.02.2012 and 30.03.2012 and by order, dated 11.04.2012, it has been ordered, "perused the complaint petition and statement of the complainant and the witnesses and from perusal of the record prima facie case for offence under Sections 147, 323, 379, 504 and 341 of the Penal Code is made out against the five accused persons named in the complaint petition and ordered to issue notice against them".
The learned counsel for the petitioners, however, challenged the order of cognizance on the ground that the Court below after examining the complainant and the witnesses was not satisfied and so called for a report from the concerned Police Station and without receipt of the report for being, further, satisfaction, in this regard, has taken cognizance and, hence, the cognizance is bad. The learned counsel for the opposite party no. 2, however, submits that the cognizance taken by the Court below is justified and well in law.
Hence, on the respective submissions, the question for consideration whether the impugned order suffers from any illegality or not as the order taking cognizance was passed even Patna High Court Cr.Misc. No.22636 of 2012 (6) dt.17-05-2013 3/6 without calling for a report by the Magistrate.
However, the procedure is prescribed under the law in case a complaint is filed and sent to a Magistrate under Section 192 of the Criminal Procedure Code and in this connection it is relevant to quote Sections 200 and 202 of the Criminal Procedure Code.
"200 : Examination of complaint - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :
........................ ........................"
"202 : Postponement of issues of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 102, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding :
........................ ........................"
However, here under the facts and circumstances of the case the case was transferred by the Chief Judicial Magistrate to Patna High Court Cr.Misc. No.22636 of 2012 (6) dt.17-05-2013 4/6 the Magistrate under Section 192 of the Criminal Procedure Code without examination of the witnesses. After receipt of the complaint under Section 192 of the Criminal Procedure Code, the Magistrate, concerned, according to Section 202 of the Criminal Procedure Code has three options, (i) the Magistrate may have either issue notice under Section 204 of the Criminal Procedure Code by going into the complaint itself, (ii) if the Magistrate not satisfied, then, he may have proceed for an enquiry or (iii) may sent the complaint petition to a Police Station with a direction to investigate the case by police officer or by such person he deems fit. However, out of the three options as is apparent the Magistrate did not choose options (i) or (iii). He chosen to proceed with the complaint and to inter into an enquiry and, thereafter, recorded the statement of the complainant and the two witnesses and, thereafter, he was only required to pass order either proceeding under Section 204 of the Criminal Procedure Code by issuing summon or under Section 203 of the Criminal Procedure Code closing the case and discharge all the accused or dismissal of the complaint petition. Hence, after proceeding for the enquiry and recording the evidence of the complainant and the witnesses now he has no other choice then to proceed for either under Sections 204 or 203 of the Criminal Procedure Code. The Magistrate instead of proceeding under Sections 204 or 203 of the Criminal Procedure Code has ordered to call for a report from the concerned Police Station. No such process has been mentioned in law or provision for calling for a report from the Police Station when he proceeded for enquiry. However, the Magistrate adjourned the case for several dates and, thereafter, without receipt of the report from the concerned Police Station proceeded with the complaint Patna High Court Cr.Misc. No.22636 of 2012 (6) dt.17-05-2013 5/6 petition and passed the order taking cognizance. However, once the Magistrate proceeded for enquiry by the complaint there is no provision provided in law to call for a report, hence, the said act of the petitioner is only an extra act without any provision in law. The Magistrate proceeded to consider the statement of the complainant recorded on oath and the statements of the witnesses and after due application of mind passed the order taking cognizance.
However, the submission of the learned counsel for the petitioners that once he has opted for report from the concerned Police Station, then, he may not have pass the order of cognizance, after entering into enquiry under Sections 200 and 202 of the Criminal Procedure Code taking cognizance.
Section 190 of Criminal Procedure Code, itself, signifies that the moment the Magistrate applies his mind for proceeding with the complaint the cognizance is said to have been taken and Section 200 of the Criminal Procedure Code signified that when the Magistrate proceed to record the statement of the complainant, then, it amounts that cognizance has already been taken.
The moment the Magistrate applies his mind on the complaint for proceeding with the enquiry, the cognizance can be said to have been taken. Here the learned Magistrate proceeded to record the statement of the complainant and his witness and, hence, when he proceeded for enquiry after due application of mind, he has taken the cognizance. However, by the impugned order he has ordered to issue summon after due consideration of the statement of the complaint and two witnesses. Hence, calling for report after due application of mind is only a report called for Patna High Court Cr.Misc. No.22636 of 2012 (6) dt.17-05-2013 6/6 after taking cognizance has got no significance.
However, since the act of the Magistrate calling for report is extra act and is in not in consonance of the law, it has no consequence.
From the bare perusal of the impugned order, it is apparent that the order has been passed after due perusal of the record and due application of mind. The perusal signified the active consideration and, hence, the submission that the order passed without application of mind is not sustainable.
Hence, I do not find any merit to interfere with the impugned order.
This petition is rejected.
(Gopal Prasad, J) SA/-