Patna High Court - Orders
Gayatri Devi vs The State Of Bihar And Ors. on 17 May, 2013
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT
PATNA
Criminal Miscellaneous No.1231 of 2011
======================================================
1. Gayatri Devi W/O Late Jitendra Manjhi Resident Of Village- Siraudha,
P.S- Baniapur, District- Saran
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Binod Singh S/O Shri Prabhu Singh Village- Bagauchhiya Bhitthi, P.S-
Baniyapur, District- Saran.
3. Kashi Rai S/O Asharfi Rai Village- Suraundha, P.S- Baniyapur, District-
Saran.
4. Dhan Kishore Rai S/O Shri Sabhapati Rai Village- Khabsa, P.S-
Baniyapur, District- Saran.
5. Satyanarayan Prasad Yadav S/O Shri Dina Nath Yadav Village-
Khalispur, P.S- Baniyapur, District- Saran.
.... .... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Arun Kumar, Adv.
For Private Opposite Party : Mr. Udai Shankar Singh, Adv.
For the State : Mr. Abhimanyu Sharma, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
7 17-05-2013In this case, petitioner is challenging the order dated 20th May 2010 passed by the Chief Judicial Magistrate, Chapra at Saran in connection with Baniapur P.S.Case No. 164 of 2008 whereby and whereunder he has accepted the Final Form bearing No. 119 of 2009 and thereby refused to take cognizance and also rejected the protest petition as well.
2. A complaint petition, mentioned hereinabove, was filed by the petitioner who happens to be the wife of Late Jitendra Manjhi. Allegation has been made her husband was member of 2 Patna High Court Cr.Misc. No.1231 of 2011 2 / 15 Panchayat Samiti of Raj Suraudha Gram Panchayat under Baniapur Block and the accused persons were licensee of public distribution system. They were indulged in black-marketing of articles meant for the beneficiary of Public Distribution System which was opposed by her husband caused annoyance, created the inimical relationship with the accused persons. Binod Singh is friend of Kashi Rai and used to help each other. On 22nd August 2008 Binod Singh called her husband, impression was given for some urgent work with her husband and assured to return after two hours. At 11 O'clock both the accused persons, including three unknown brought her husband and asked the complainant to lay her husband as her husband was not feeling well. On their advice, she laid her husband, thereafter the accused persons left the place. At 1 O'clock in the night, her husband started vomiting and his health started deteriorating. The husband informed the complainant that the accused persons had served poisonous wine caused deterioration of his health. The petitioner rushed to hospital with her husband but he died on way to the Hospital. The complainant returned with the dead body. While she was preparing to inform the Police, the aforesaid accused persons came and forcibly took away the dead body and with the purpose to disappear the evidence, consigned corpse to flames. It has been 3 Patna High Court Cr.Misc. No.1231 of 2011 3 / 15 alleged that the complainant is a member of the Scheduled Caste and her husband was always opposing the accused persons on, account of caste consideration the husband became eye sore, to finish her husband he was served the poisonous wine which caused his death. The case was registered as Complaint Case No. 2755 of 2008, the Magistrate in exercise of power conferred under Section 156(3) of the Code of Criminal Procedure, sent the complaint for investigation by the Police. The same was registered on 5th October 2008 as Baniapur P.S.Case No. 164 of 2008 for the offences under Sections 302, 201, 328 of the Indian Penal Code and Section 3(i)(x) of the Scheduled Caste & Scheduled Tribe Act. As the complainant-petitioner was apprehensive of foul play by Police with the connivance by accused persons, she filed protest petition on 18th November 2008. Police after investigation submitted Final Form on 31st August 2009. As the Police found that there was no sufficient evidence for arriving at the conclusion of induction of poison rather concluded her husband died due to heart attack as the body of the deceased had no sign of poison. The court below accepted the Final Form and affirmed the view of Police that the death was caused due to heart at tack and not by administering poison and accepted the final form as well as rejected the protest petition.
4 Patna High Court Cr.Misc. No.1231 of 2011 4 / 15
3. Counsel for the petitioner submits that the Police has wrongly submitted the final form as well as the court below wrongly refused to take cognizance though there was/is sufficient material in the case diary for taking cognizance of the offence. He further submits that the finding recorded by the Chief Judicial Magistrate that her husband did not die due to poisoning but died due to heart attack amounts to conducting mini trial which is not permissible in law. At the stage of taking cognizance the Magistrate was required to see the materials available in the case diary showing only prima facie case in stead of exercising power properly misdirected himself in conducting mini trial and came to a positive finding of death due to heart attack which could have been arrived after assessing of the evidence during the trial. He has also submitted that the Chief Judicial Magistrate has wrongly rejected the protest petition as after acceptance of Final Form he was required to treat the protest petition as complaint petition and was required to proceed with the protest petition calling the complainant to make her statement on oath and to bring the supporting evidence, was required to assess the evidence to form opinion about the constitution of prima facie case but in stead the court below has adopted a peculiar procedure dismissing the protest petition without properly dealing with the same. 5 Patna High Court Cr.Misc. No.1231 of 2011 5 / 15 Counsel for the petitioner submits that the petitioner has approached the higher Police Officials and always raised the grievance about the tainted investigation conducted by the Police Officials. The counsel for the petitioner submitted that the court below wrongly and improperly exercised the power under Section 203 Cr.P.C. rejected complaint/protest petition without assigning any cogent reason or any reason.
4. Counsel for the opposite party has seriously objected the argument of the petitioner and has submitted that the court below has rightly adopted due and proper course in accepting the final form submitted by the Police and rightly rejected the protest/complaint petition. As the Police during investigation did not find connecting evidence to show the accused persons involved in poisoning the husband of the complainant through serving poisonous wine rather the cause of death was assessed ill health of her husband as he died because of heart attack.
5. Having considered the rival contention of the parties, it is well settled principle of law that at the stage of taking cognizance, the Magistrate was not required to conduct a mini trial in the form of weigh and sift the evidence, rather he was required to examine the material which were collected by the Police during 6 Patna High Court Cr.Misc. No.1231 of 2011 6 / 15 the investigation for the purposes of forming opinion about the existence of prima facie case. This Court has examined different Paragraphs of the case diary showing sufficient materials available in the case diary indicating direct implication of accused persons. The Court should not at the stage of cognizance was required to weigh the evidence and to arrive at a finding of not being case of poison on the basis of not having sign of poison on the body which finally could have been arrived during the trial as the court below while exercising power for the purpose of cognizance was required to examine materials available in the case diary for the purposes of forming an opinion of prima facie case, somuch so that when the court below after having accepted the Final Form, on protest petition he was required to proceed with the same manner of complaint petition and was required to call the complainant to make her statement on S.A. and any supporting witness only thereafter, after consideration of all the materials, the Magistrate could have passed the order either to take cognizance of the offences or reject the complaint petition, but in the present case, the Chief Judicial Magistrate has adopted a new method in holding a mini trial and coming to a finding of death caused due to heart attack and coming to the opinion of non-administering poison as the dead body was not showing any sign of poisoning. 7 Patna High Court Cr.Misc. No.1231 of 2011 7 / 15 This finding could have been recorded by the Magistrate not at the stage of taking cognizance but the proper course was when the trial would have been done and at the end of the trial court could have come to the positive finding about non-existence of poison in the body and death due to heart attack. When the wife of the deceased was crying about the wrong committed on her husband raising plea of foul play by the Police in connivance with the accused persons, the court was required to see the materials brought by the Police collected during the investigation so much so that while considering the protest petition, the Magistrate wrongly rejected the protest petition without applying proper procedure and showing any application of mind.
6. There is no doubt in Criminal Justice delivery system issuance of notice is serious matter but that does not mean at the stage of cognizance, the court would analyze the evidence, but court has limited jurisdiction to record the evidence and find out for the purpose of cognizance whether the offence is made out. The court would not embark upon weighing the evidence to come to conclusion for having made out a case or not, relevant to quote Para-43 of judgment Subramainan Swamy v. Manmohan Singh (2012)3 SCC 64 which is as follows:
Para-43. Before proceeding further, we 8 Patna High Court Cr.Misc. No.1231 of 2011 8 / 15 would like to add that at the time of taking cognizance of the offence, the court is required to consider the averments made in the complaint or the charge-sheet filed under Section 173. It is not open for the court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. However, before issuing the process, it is open to the court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the court may direct the issue of process to the respondent and take further steps in the matter. If it is a charge-
sheet filed under Section 173 CrPC, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the court. Thus, it is not the province of the court at that stage to embark upon and sift the evidence to come to the conclusion whether or not an offence 9 Patna High Court Cr.Misc. No.1231 of 2011 9 / 15 has been made out.
7. Further the Hon'ble Supreme Court considered the scope and parameter of enquiry by the court while taking cognizance was required to form an opinion for the purpose of taking cognizance, has to see prima facie case based on materials collected during investigation or materials brought by the complainant. It is relevant to quote Para 16 & 17 of Nupur Talwar v. CBI (2012)2 SCC 188 which is as follows:
Para- 16. Section 190 of the Code lays down the conditions which are requisite for the initiation of a criminal proceeding. At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the police in its report and may prima facie find out whether an offence has been made out or not.
Para-17. The taking of cognizance means the point in time when a court or a Magistrate takes judicial notice of an offence with a view to 10 Patna High Court Cr.Misc. No.1231 of 2011 10 / 15 initiating proceedings in respect of such offence which appears to have been committed. At the stage of taking of cognizance of offence, the court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record.
8. The scope of enquiry by the court dealing with the issue of taking cognizance, has been considered and reiterated earlier view in Vasanti Dubey v. State of M.P. (2012)2 SCC 731. It is relevant to quote Para-20, 21, 27, 28 and 29 which is as follows:
Para-20. This position has been further reiterated and reinforced in a recent judgment of this Court delivered in Ram Naresh Prasad v. State of Jharkhand4, wherein it has been held that when the police submitted a final report of the investigation of the case which in colloquial term is called "closure report", the Magistrate cannot direct the police to submit the charge-
sheet. However, on the basis of the material in the charge-sheet, he may take cognizance or direct further investigation. In fact, this position is clearly laid down under Section 190 read with 11 Patna High Court Cr.Misc. No.1231 of 2011 11 / 15 Section 156 CrPC itself and the legal position has been time and again clarified by this Court in several pronouncements viz. in H.S. Bains v.
State (UT of Chandigarh)5 wherein Their Lordships have summarised the position as follows:
"1. When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3) ante;
2. Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps:
(i) If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the complaint.
(ii) He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section 200.
(iii) Even if he disagrees with the police 12 Patna High Court Cr.Misc. No.1231 of 2011 12 / 15 report, he may either take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such enquiry take action under Section 203. However, when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant, the Magistrate cannot direct the police to straightaway submit the charge-sheet as was the view expressed in Abhinandan Jha3 which was relied upon in Ram Naresh Prasad4."
Para-21. Thus it is undoubtedly true that even after the police report indicates that no case is made out against the accused, the Magistrate can ignore the same and can take cognizance on applying his mind independently to the case. But in that situation, he has two options: (i) he may not agree with the police report and direct an enquiry under Section 202 and after such enquiry take action under Section 203; (ii) he is also entitled to take cognizance under Section 190 CrPC at once if he disagrees with the adverse police report but even in this circumstance, he cannot straightaway direct submission of the charge-sheet by the police.
13 Patna High Court Cr.Misc. No.1231 of 2011 13 / 15 Para-27. It may be worthwhile to highlight at this stage that the enquiry under Section 200 CrPC cannot be given a go-by if the Magistrate refuses to accept the closure report submitted by the investigating agency as this enquiry is legally vital to protect the affected party from a frivolous complaint and a vexatious prosecution in complaint cases. The relevance, legal efficacy and vitality of the enquiry enumerated under Section 200 CrPC, therefore, cannot be undermined, ignored or underplayed as non- compliance with enquiry under Section 200 CrPC is of vital importance and necessity as it is at this stage of the enquiry that the conflict between the finding arrived at by the investigating agency and enquiry by the Magistrate can prima facie justify the filing of the complaint and also offer a plank and a stage where the justification of the order of cognizance will come to the fore. This process of enquiry under Section 200 CrPC is surely not a decorative piece of legislation but is of great relevance and value to the complainant as well as the accused.
Para-28. It is no doubt possible to contend 14 Patna High Court Cr.Misc. No.1231 of 2011 14 / 15 that at the stage of taking cognizance or refusing to take cognizance, only prima facie case has to be seen by the court. But the argument would be fit for rejection since it is nothing but mixing up two different and distinct nature of cases as the principle and procedure applied in a case based on police report which is registered on the basis of the first information report cannot be allowed to follow the procedure in a complaint case. A case based on a complaint cannot be allowed to be dealt with and proceeded as if it were a case based on police report.
Para-29. While in a case based on police report, the court while taking cognizance will straightaway examine whether a prima facie case is made out or not and will not enter into the correctness of the allegation levelled in the FIR, a complaint case requires an enquiry by the Magistrate under Section 200 CrPC if he takes cognizance of the complaint. In case he refuses to take cognizance he may either dismiss the complaint or direct the investigating agency to enter into further investigation. In case he does not exercise either of these two options, he 15 Patna High Court Cr.Misc. No.1231 of 2011 15 / 15 will have to proceed with the enquiry himself as envisaged and enumerated under Section 200 CrPC. But, he cannot exercise the fourth option of directing the police to submit a charge-sheet as such a course is clearly not envisaged under CrPC and more so in a complaint case.
9. In this view of the matter, the impugned order is quashed and the matter is remanded back to the court below to pass order afresh in accordance with law after considering the materials collected during investigation, if the court below on consideration of the case diary comes to a conclusion of not having materials for forming an opinion of taking cognizance, in that circumstance it will deal with the protest petition as per law as has been discussed hereinabove.
10. Accordingly, this petition is allowed.
Jay/- (Shivaji Pandey, J)