Patna High Court
Raghubansh Dubey vs The State Of Bihar on 10 April, 1964
Equivalent citations: AIR1964PAT487, 1964CRILJ569, AIR 1964 PATNA 487, 1964 BLJR 452
JUDGMENT Ramratna Singh, J.
1. The facts giving rise to this application in revision are these. One Raja Ram Sao lodged a first information report on the 29th of July, 1959 against fifteen persons including the petitioner Raghubansh Dubey. In due course, the police submitted final form under Section 173 of the Code of Criminal Procedure; and the Police recommended that, except Raghubansh Dubey, the other persons named as accused in the first information report should be tried. In other words, Raghubansh Dubey was not sent up by the police for triar. On the 5th April, 1961, the Sub-divisional Magistrate passed the following order :-
"C. S. No. 12 dated 23-3-61 under Section 149 /302/ 201, I. P. C. received against the accused noted in Col. 3 and 4 of C. S. Cog. taken under Section 149/302/201, I. P. C. and case transferred to Sri L. P. Singh, Magistrate 1st Class for enquiry under Chapter XVIII Cr. P. C. Accused not sent up for trial is discharged."
Except the name of Sri L. P. Singh and the initial of the Subdivisional Magistrate, the entire order is in the writing of the Bench clerk of the Magistrate.
The transferee Magistrate, i.e. Mr. L. P. Singh took up the hearing of the case on the 2nd May 1961. On that day, after a prosecution witness had been examined in chief, the lawyer" for Raja Ram Sao requested the Magistrate to summon Raghubansh Dubey as well for trial, as prayed for in the informant's petition dated 11-4-61, because Raghubansh Dubey had been named in the first information report as well as in the examination in chief of P. W. 1. After hearing the Assistant District Prosecutor as well as the lawyer for the informant and the accused before him, Mr. Singh passed the following order:
"Raghubans is named in F. I. R. and as submitted by A. D. P. 5 witnesses have named him before Police and P. W. 1 examined before me has also named him. So in my opinion it is proper to add Raghubans Dubey also in this enquiry as accused. At this stage one petition has been filed by lawyer of accused that cross-examination of P. Ws. be allowed to be done after appearance of Raghubans. This contention is quite reasonable otherwise cross-examination will have to be done again after appearance of Raghubans and so prayer of defence is allowed. Examined P. W. 2 also in chief. He has also named Raghubans to be a member of the mob of these accused at the time of occirrrence. So issue non-bailable W/A against Raghubans Dubey according to address given by P. W. Mahesh Sah today as the allegation against Raghubans appears to be very serious one. Send the process by special peon returnable by 3-5-61, Other accused will re-attend".
In the petition dated 11-4-61 filed before this Magistrate, Raja Ram Sao had requested the Magistrate to summon Raghubans Dubey. At that time he did not pass any order, but he, summoned Raghubansh Dubey after considering the evidence of the two prosecution witnesses and the evidence of five witnesses before the Police. It is against the order dated the 2nd May 1961, summoning Raghubansh Dubey, that this application in revision has been filed.
2. Mr. Baldeo Prasad Singh raised two points challenging this order. He submitted that the petition dated 11-4-61 amounted to a protest petition, and therefore, it is a petition of complaint. Summoning Raghubansh Dubey on the basis of a petition of complaint would result in a separate complaint case, and if Raghubansh Dubey is tried along with the other accused persons under Section 207-A of the Code of Criminal Procedure, he would be at a disadvantage, because the provisions contained in Chapter XVIII of the Code relating to complaint cases are more advantageous to the accused, particularly because he has the opportunity to cross examine the prosecution witnesses before the charge is framed. Learned counsel cited the decision of the Supreme Court in Hanumantha Rao v. State of Andhra Pradesh, (S) AIR 1957 SC 927 to show the important distinctions between an enquiry in respect of Police report and an enquiry in respect of complaint cases. But it is not necessary to go into this question, because we are of the opinion that the impugned order did not result in a separate complaint case against Raghubansh Dubey.
Section 207 of the Code of Criminal Procedure reads as follows:
"In every inquiry before a Magistrate where the case is triable exclusively by a Court of Sessions or High Court, or in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall--
(a) in any proceeding instituted on a Police report, follow the procedure specified in Section 207-A, and
(b) in any other proceeding, follow the procedure specified in the other provisions of this Chapter."
It will be noticed that Clause (a) of this section refers to a case instituted on a police report, and Clause (b) refers to a case instituted on a complaint or upon other information or knowledge of the Magistrate who had taken cognizance of the case. The present case was instituted when the Subdivisional Magistrate took cognizance of an offence reported by the Police, and, therefore, the case shall be deemed to have been instituted on the Police report. After taking into consideration the provisions of Section 190 and other relevant provisions of the Code, the Supreme Court said in Jamuna Singh v. Bhadai Shah, 1964 BLJR 47 : (AIR 1964 SC 1541) as follows :
"An examination of these provisions mattes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence, a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. Again when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate's court on a Police report."
It is, therefore, clear from the language of Section 190 of the Code that the Magistrate takes cognizance of an offence made out in the Police report or in the petition of complaint, and there is nothing like taking cognizance of the offenders at that stage. It has to be decided on the materials on record as to who actually the offenders may be only after cognizance of the offence has been taken. On the facts of the instant case, therefore, cognizance of the offence has been taken on a Police report, and the order of the transferee Magistrate summoning Raghubans Dubey does not amount to tatting cognizance of an offence. Hence, there is no force in the contention of Mr. Baldeo Prasad Singh, and it must be rejected. The enquiry against Raghubansh Dubey with the other accused persons under Section 207-A of the Code is, therefore, justified in law.
3. The next point urged by Mr. Singh was that the impugned order of Mr. L. P. Singh is highly irregular, as he summoned Raghubans Dubey on the same grounds on which the Subdivisional Magistrate had discharged him. On the other hand, the learned Advocate for the State submitted that the learned Subdivisional Magistrate did not seem to have applied his mind to the last sentence of the order dated 5-4-61, namely, "Accused not sent up far trial is discharged". But the point raised by Mr. Baldeo Prasad Singh is easily met by the fact that the Magistrate, Mr. Singh, did not summon Raghubansh on only those grounds which were before the Sub-divisional Magistrate. The materials before the two Magistrates were net identical. The Sub-divisional Magistrate acted on the Police report alone; but Mr. Singh took into consideration the evidence of two prosecution witnesses examined in court as well. The Magistrate to whom a case is transferred under Section 192 of the Code of Criminal Procedure, is in seisin of the whole case, whether it be a case instituted on a Police report or on a complaint petition, and that Magistrate has the power to summon any person as an accused, although he may not have been summoned by the transferor Magistrate -- see Province of Bihar v. Bhim Bera, AIR 1947 Pat 284. The action of Mr. L. P. Singh in summoning Raghubansh is, therefore, neither illegal nor irregular, and this contention of Mr. Baldeo Prasad Singh also fails.
4. In the result, the application is dismissed.
S. P. Singh, J.
5. I agree.