Patna High Court
Ishwar Dayal Singh And Anr. vs State Of Bihar And Anr. on 11 July, 1986
Equivalent citations: 1987CRILJ1325
ORDER S.H.S Abidi, J.
1. Heard the learned Counsel for the petitioners and the State. Nobody appears on behalf of the informant.
2. The petitioners have come against the orders dated 10-6-81 and 16-1-82 taking cognizance against the petitioners in a case under Section 395, I.P.C. The First Information Report was lodged against the petitioners on 5-2-1981 for an offence punishable under Section 395, I.P.C. in which the final form was submitted by the police on 29-3-81 saying that the case against the petitioners was false. In the meantime on 17-2-81 a protest petition was filed by the informant Saheb Dayal Singh before the Chief Judicial Magistrate, Bhojpur, alleging commission of dacoity in his house by the petitioners and Ors. which gave rise to complaint case No. 114 of 1981. After submission of the final form the learned Magistrate on 10-6-81 passed the order as follows: (as mentioned in Anneyure to the petition).
Both accused file Haziri. Informant also files Haziri. Final report as true under Section 395, I.P.C. false has been received. Final report put up in presence of A.P.P. and also heard of P.P. the A.P.P. prays for the acceptance. I also see no reason to disagree with the opinion of police.
As such the final report is accepted. The case discharged from the liabilities of their limit ends. As there is protest pending, the case will proceed on protest.
3. Thereafter the case proceeded and on 16-1-82 the learned Chief Judicial Magistrate passed the orders that on perusal of the statements of the complainant on S. A. and those of P.W.I, P.W. 2, P.W. 3, P.W. 4 and P.W. 51 find that there are sufficient materials for proceeding against the accused persons named in the protest complaint under Section 395, I.P.C. Accordingly issue summons to the accused persons to stand trial under Section 395, I.P.C. Against this order the petitioners have come to this Court.
4. learned Counsel for the petitioner urged that once the final form on the same facts has been accepted then the Court on I the same date could not proceed with the complaint of the petitioner based on the same facts, specially when both the matters were listed on the same date; and so contradicting orders have been passed. In support of his argument he referred to two decisions of this court i.e. (1) Bhuneshwar Prasad Sinha v. State of Bihar 1981 BLJ 336 : 1981 Cri LJ 795 and (2) Uma Shanker Singh v. State of Bihar 1981 BLJR 337 : 1981 Cri LJ NOC , 118. In the earlier case it was held that once the final form is submitted and thereafter a protest or complaint petition is filed then the Magistrate should keep both the matters together on the same date and if he takes cognizance on the basis of the complaint then he should not accept the final form and that once he accpets the final form on the same facts then he is not entitled to take cognizance on die basis of the complaint or the protest petition as it will result into two inconsistent orders.
5. In the second decision of this Court it was held that after the acceptance of the final form the Magistrate has no jurisdiction j to initiate a proceeding on the basis of the protest petition when both were taken into consideration on the same date. This contention of the learned Counsel has got no force because against the judgment of Bhuneshwar Prasad v. State of Bihar (supra) the parties went to the Supreme Court and the judgment of this Court was reversed in the case of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha (1982) 3 SCC 510 and the Supreme Court observed "The High Court was clearly in error thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report. The order of the High Court is set aside. The matter is remitted to the Chief Judicial Magistrate, Patna, for, disposal according to law. If the accused have any further objections to raise, they may do so before the Chief Judicial Magistrate."
6. Later on in a Division Bench case of this Court in Muni Lal Thakur v. Nawal Kishore Thakur 1985 Cri LJ 437 the very case of Bhuneshwar Prasad Sinha v. State of Bihar 1981 Cri LJ 795 (supra), was considered and overruled relying upon the said decision of the Supreme Court and it was held that a Magistrate, even after accepting final report, can still take cognizance of the offence upon a complaint or a protest petition on same or similar allegations of fact.
7. In view of the above decision of the Supreme Court and the Division Bench decision of this Court, the aforesaid two decisions of the single Judge of this Court cannot help the petitioner as they are overruled and set aside.
8. In the result this application has no merit. It is accordingly dismissed. The interim order dated 15-4-82 passed by this Court is vacated. The Court below is directed to dispose of the matter as early as possible.