Patna High Court
Banshi Modi And Ors. vs The State Of Bihar And Anr. on 11 November, 1981
Equivalent citations: 1982CRILJ1201
ORDER Satyeshwar Roy, J.
1. By order dated 29-8-1981, notice was directed to be issued on opposite party No. 1, as to why this application should not. be admitted. Opposite party No. 1 has entered his appearance and with consent of all the parties this application is being disposed of at this stage.
2. On 18-2-1976, opposite party No. 1, lodged an information with the police making allegation against the petitioners. All the petitioners have been named in the information lodged by opposite party No. 1, On the basis of the information lodged by opposite party No. 1, the police took up investigation. The Investigating Officer submitted a final report holding that the information given by opposite party No. 1 was false arid prayed for a proceeding against him Under Sections 182 and 211 of the IPC This report dated 11th May, 1976 was put up before the Court below on 28th August, 1976, but no final order was passed on that day. Meanwhile, on 3rd April, 1976, opposite party No. 1 filed an application before the Court below, which has been described as protest petition and is Annexure-3 to the application. It was stated by him that the police was in collusion with the petitioners, and, therefore, he did not expect justice at the hands of Investigating Officer. He prayed that this protest petition should be treated as a complaint and cognizance should be taken on the basis of this. This was put up before the Court below on 20th October, 1976. On 22nd August, 1977, an inquiry Under Section 202 of Cr.P.C. (the Code) was started, but no final order was passed on the same. On 9-9-1981, the Court below noticed all these facts and on the basis of police report took cognizance of the offence Under Sections 147, 148, 436 and 307 of I. P. C, and directed for issuing processes against the petitioners. The legality of this order has been challenged in this application.
3. It has been contended on behalf of the petitioners that once the Court had started an inquiry Under Section 202 of the Code on the basis of Aiinexure-3, it could not have taken cognizance on the police report. According to the petitioners, the Court below was required to pass final order either Under Section 203 of the Code, dismissing Annexure-3, or to direct for issuance of processes Under Section 204 of the Code. But, as in this case the Court below has not only taken into consideration the inquiry report but has relied upon the police report also for the purpose of taking cognizance, the order is bad. It was further submitted that the Court below ought to have treated the case as a complaint case and should not have perused the case diary for the purpose of taking cognizance. Reliance was placed in support, of this proposition in Ram Kumar Pandey v. State of Bihar (1979 BLJ 461) and Bhu-neshwar Prasad Sinha v. State of Bihar (1981 BLJ 336 :1981 Cri LJ 795). learned Counsel for opposite party No. 1 has submitted, that in view of the fact that the Court has taken cognizance on the basis of the police report only, the order impugned is legal.
4. I have noticed in detail, the facts which are not in dispute. Some more facts which are required to be noticed are that before passing any final order on the police report which was put up before the Court below on 20-8-1976, it had directed that an .inquiry Under Section 202 of the Code on the protest petition filed on behalf of the opposite party No. 1 would be done. Therefore, the date on which the impugned order was passed, F. I. R., case diary, final report of the police as well as the evidence recorded in the inquiry Under Section 202 of the Code were before the Court. Mr. Dayal has placed a few lines of the impugned order and submitted that the Court below has taken into consideration the evidence recorded in that inquiry along with the police report for the purpose of taking cognizance. He urged that since this has been done in view of Ram Kumar Pandey's case, the order is bad. On perusal of the impugned order, I find that for the purpose of taking cognizance against the petitioners, the Court below has not taken into consideration the evidence recorded Under Section 202 of the Code. The Court below has clearly stated that it was ignoring the evidence recorded in the inquiry. That being so, Ram Kumar Pandey's case has no application to this case. Mr. Dayal admitted that Bhuneshwar Prasad Sinha's case has no application.
5. The whole thrust of the submission of Mr. Dayal was with regard to the point, which he had framed as under:
Once the Court has decided to entertain the complaint and made inquiry1 Under Sections 202 of the Code, the Court shall have to pass final order on the basis of the evidence recorded in that inquiry, either by dismissing the complaint petition or by directing issuance of processes and by ignoring that inquiry, it cannot revert to the police report for the purpose of taking cognizance.
No authority has been brought to my notice in support of this proposition. According to Mr. Dayal, once a final report has been submitted by the police, the Court may accept the same or may differ with it and on the basis of the materials already on the record i. e., police report, case diary and charge sheet, it may take cognizance or may ask to make further investigation. Since none of these courses were followed by the Court below but entertained the complaint petition, the Court below was not competent to take cognizance on the basis of the statements recorded by the police. There is no dispute about the legal position that if once a Court accepts final report' and discharges the accused, it cannot, on the basis of complaint, take cognizance against those persons. In this case, as noticed above, no order was passed on the said report and without passing any final order, the complaint was entertained. Therefore, on the date the impugned order was passed by the Court below it had before it, the police papers as also the statements recorded in the inquiry Under Section 202 of the Code. The Court has ignored the statements so recorded in the inquiry and looked into the case diary and after perusing the statements of witnesses recorded by the police found that a prima-facie case has been made out. Under such facts, I do not think, that the Court was not competent to take cognizance on the basis of the statements recorded by the police and treat the case as a police case.
6. I therefore, do not find any merit in the contention raised on behalf of the petitioners. The application is dismissed.