Jharkhand High Court
Ramesh Murmu vs The State Of Jharkhand on 11 April, 2017
Equivalent citations: 2017 (2) AJR 796
Author: Ananda Sen
Bench: Ananda Sen
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1782 of 2016
.....
Ramesh Murmu, son of Roshen Murmu, resident of village-
Baskendri, P.O. & P.S. Maheshpur, District-Pakur
... ... Petitioner
Versus
The State of Jharkhand ... ... Opposite Party
.....
PRESENT
CORAM: HON'BLE MR. JUSTICE ANANDA SEN
.....
For the Petitioner : Mr. Ranjan Kr. Singh, Advocate
For the State : A.P.P
.....
C.A.V.ON. 17.03.2017 Pronounced on 11/04/2017
The petitioner has challenged the order dated 05.05.2011
by which cognizance of offence has been taken under Sections
376 and 379 of the Indian Penal Code, arising out of
Maheshpur P.S. Case No. 83 of 2007, corresponding to G.R.
Case No. 350 of 2007, which is pending in the court of the
learned Chief Judicial Magistrate, Pakur.
2. The first information report was lodged at the instance of
the informant, namely, Baso Baski, daughter of Ram Baski
alleging therein that after proposal of marriage between the
petitioner and the informant, the petitioner took her to his
house where they lived for two months like husband and wife.
The informant, thereafter, came to know that this petitioner was
already married and was having a child out of the earlier
wedlock. It is alleged that the petitioner assaulted the informant
and drove her out. She also alleged that she was subjected to
sexual harassment on the pretext of marriage for the last two
months. It is further alleged that her silver chain was also
snatched by the petitioner.
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3. The fardbeyan was registered as Maheshpur P.S. Case
No. 83 of 2007, and thereafter, investigation started. After
completion of investigation, on 27.11.2007, the Investigating
Officer submitted final form being Final Form No. 169 of 2007,
showing mistake of fact. The Court below, thereafter on
05.05.2011took cognizance of offence under Sections 376 and 379 of the Indian Penal Code. This order taking cognizance is under challenge.
4. Learned counsel appearing for the petitioner submits that the order taking cognizance has absolutely bad in law and is liable to be set aside. He submits that after the final form was submitted showing mistake of fact, notices were issued to the informant. The informant did not appear pursuant to the said notice and ultimately the Court below took cognizance of the offence. He submits that issuing notice to the informant by the court, suggests that the Court was inclined to accept the final form and was waiting for a reply from the informant, but suddenly, the learned Court below had taken cognizance of the offence that too without assigning any reasons. He submits that no reason has been assigned in passing the impugned order. On the aforesaid grounds the learned counsel prays to quash the impugned order taking cognizance dated 05.05.2011. He refers to a judgment passed by this Court reported in 2014 (2) JLJR 95 (Jhr) Bigan Mian @ Siraj Mian Vs. State of Jharkhand, in support of this submission wherein it has been held that reasons must be recorded while differing with the police report. 3
5. Learned Addl. P.P opposes the prayer and submits that there is no illegality in taking cognizance of the offence. He submits that it is well within the jurisdiction of the Magistrate to take cognizance of the offence, when the Court prima facie finds that the offence is made out, after perusing the case diary and the charge-sheet.
6. Heard, learned counsel for the parties and have also perused the records.
7. The F.I.R. was registered under Sections 376 and 379 of the Indian Penal Code. The Investigating Officer after investigation, filed final form on 27.11.2007, showing mistake of fact. On 20.01.2008 notices were issued to the informant by the Court. For long three years, the case was kept pending for appearance of the informant. Ultimately on 05.05.2011 the learned Magistrate took cognizance of offence under Sections 376 and 379 of the Indian Penal Code. The Magistrate while taking cognizance has only mentioned that he has perused the final form and the case diary and has come to the conclusion that the prima facie case has been made out.
8. It is well within the jurisdiction of the Magistrate to differ from the police report and take cognizance of an offence. The Magistrate is not bound by the police report. Independently, the Magistrate has to apply his mind to arrive to a conclusion, whether cognizance should be taken or not, after receipt of the police report. Even after police submits final form showing mistake of fact or the case to be untrue, the Court can take 4 cognizance of offence. In doing so the Magistrate is not bound by the opinion of the Investigating Officer and he is competent to exercise his discretion in this respect inspite of the view expressed by the police in its report and may prima facie from the records, find out whether any offence has been made out or not. If from the record an offence is made out, cognizance has to be taken by the Magistrate.
9. The Hon'ble Supreme Court in the case of Nupur Talwar Versus Central Bureau of Investigation and Another, as reported in (2012) 11 SCC 465 188, has dealt with the issue of taking cognizance by the Magistrate. In the aforesaid case the Central Bureau of Investigation after investigating the offence had initially filed a closer report of the investigation. The Magistrate differing with the report of the police had found prima facie evidence to proceed against the accused persons. The order of Magistrate was a detailed order which also gave reasons as to why the Magistrate is deferring with the report of the investigating agency. The Magistrate while passing the order had taken note and considered the police report and gave his prima facie observation and also mentioned with reasons as to why he differed with the police report. The Hon'ble Supreme Court upholding order passed by the Magistrate has held that the Magistrate has applied his mind in coming to the conclusion relating to taking of cognizance.
10. As held earlier, at the time of taking cognizance the Court should apply mind independently and come to a conclusion 5 whether prima facie an offence is made out and there is a reasons for issuing process.
11. In the instant case the Court below has taken cognizance of offence under Section 376 and 379 of the Indian Penal Code, when there was a police report showing mistake of fact.
12. After receipt of the said order the Magistrate took cognizance only by stating that after perusal of the final report and the case diary, since prima facie case is made out, cognizance is taken. No reasons have been assigned as to why the Magistrate is differing with the police report. As per the final form, the case in hand is that of a mistake of fact, then what was their in the records, as a result of which the Magistrate has differed with the final form, has not been mentioned in the order taking cognizance. As held earlier Magistrate is well within his jurisdiction to differ with the final form but atleast bare minimum reason has to be recorded as to why he is differing with the police report. The recording of reason will suggest that the Magistrate has applied his judicial mind while differing with the police report.
13. In the case of Nupur Talwar Versus Central Bureau of Investigation and Another & (Supra) the Magistrate differed with the closer report submitted by the Central Bureau of Investigation and had given reasons as to why he is differing with the police report by referring the statements of some of the witnesses recorded during investigation. That order of learned Magistrate was upheld by the Hon'ble Supreme Court. Hon'ble 6 Supreme Court came to the conclusion that the Magistrate has applied his mind while differing with the police report and thereafter, coming to a conclusion that a prima facie offence is made out to process.
14. In the instant case there is nothing on record suggesting that the Magistrate has applied his mind while differing with the police report. This Hon'ble Court in the case of Bigan Mian @ Siraj Mian Vs. State of Jharkhand, has held that the Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emergent to the investigation and can take cognizance of offence, if he thinks fit. Thus, the main consideration while testing the impugned order is whether the Magistrate has applied his judicial mind independently. The application of the judicial minds must reflect in his order.
15. In the instant case, the Magistrate has written only one line, that after perusal of the final form and the case diary, he is taking cognizance. If we go by the said finding, then it is clear that the final form exonerates the accused. The said final form is, on the basis of the investigation which includes recording of statements of the witnesses and the victim. Thus, when the police exonerates the accused after investigation and on the same set of materials the Magistrate differs from the police report and takes cognizance, a bare minimum reasoning for differing with the police report, must be recorded by the Magistrate. From perusal of the impugned order it can be 7 concluded that no reasoning has been recorded as to why the Magistrate has scrapped the police report and have concluded that cognizance has to be taken in this case. Accordingly, this order taking cognizance dated 05.05.2011, by the Magistrate, is quashed. However, this matter is remanded back to the Magistrate to pass a fresh order, in accordance with law as indicated above within a period of eight weeks from the date of receipt of a copy of this order.
16. This application stands allowed with the aforementioned observations and directions.
Amar (Ananda Sen, J.)