Patna High Court - Orders
Dinesh Prasad Singh @ Dinesh Singh vs State Of Bihar & Anr on 15 May, 2014
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.9607 of 2014
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Dinesh Prasad Singh @ Dinesh Singh, Son of Late Ganesh Prasad Singh,
R/O Mohalla- Bhagwanpur, N.H. 28, P.S. Sadar (Muzaffarpur), District-
Muzaffarpur.
.... .... Petitioner.
Versus
1. The State of Bihar.
2. Anil Kumar Thakur, S/O Late Tapeshwar Thakur, R/O- Village-
Bhagwanpur, P.S.- Shahebganj, District- Muzaffarpur.
.... .... Opposite Parties.
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Appearance :
For the Petitioner : Mr. Rana Pratap Singh, Sr. Advocate &
Mr. Sarvesh Kumar Singh, Advocate.
For the State : Mr. Md. Ansharul Haque, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR
SINGH
ORAL ORDER
4 15-05-2014Heard learned senior counsel for the petitioner and the State.
It appears that the complainant O.P. No. 2 entered appearance and filed an affidavit before this Court retracting from his initial version in the FIR or statement on solemn affirmation. Though Vakalatnama has also been filed on behalf of one Binod Choudhary but today, none on behalf of the informant or Binod Choudhary are appearing.
The present application has been filed for quashing the order dated 17.02.2014, passed in Sessions Trial No. 763 of 2013 whereby petitioner‟s application preferred under Section 227 of 2 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014 2 / 14 Cr. P.C., for discharge has been rejected.
The issue which has to be considered by this Court firstly, is whether after several years of suspension of process under Section 202 of Cr.P.C., if no further material comes, can the Magistrate take cognizance on the same set of materials. Secondly, whether in the case where final form has been submitted and the matter proceeded on protest-cum-complaint, while considering discharge under Section 227 Cr.P.C., the learned Trial Court can call for the police case diary of the case under enquiry or trial, as an aid in such enquiry as envisaged under Section 172(2) Cr.P.C.
The case of the informant as per the FIR registered as Kudhani P.S. Case No. 191 of 2001 under Sections 302/34, 307 and 326 of the I.P.C., is that one Anil Kumar Thakur O.P. No. 2, filed a written report to the effect that he was working as the driver of Binod Choudhary. On 04.09.2001, at 3 P.M. a Maruti van came to the office of the employer of the informant and enquired about the employer of the informant, namely, Binod Choudhary and Bijay Choudhary. In the meantime, tractor driver Raju Sahni conveyed that he was not knowing about the whereabouts of Binod Choudhary and Bijay Choudhary, on which one person alighted from the Maruti van and ordered to kill everyone, upon which the petitioner started firing, causing injury on the head 3 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014 3 / 14 of Raju Sahni, as a result of which he died on the spot. Hari Shankar Choudhary, Nageshwar Choudhary and Dhorha Paswan came to the place of occurrence and they also received gun shot injuries. Thereafter, other persons also came at the place of occurrence. The informant came to know from his employer, i.e., Binod Choudhary, that on 08.09.2001, he was going to move „No Confidence Motion‟ against the wife of the petitioner who was the Chairman of Muzaffarpur Zila Parishad, for which he was threatened on 03.09.2001.
After investigation, the final form was submitted vide Final Form No. 210 of 2002 on 17.09.2002 treating the occurrence to be true but without any clue. The final form has been brought on record as Annexure-2. The final form was accepted vide order dated 17.08.2006 by the order passed by the learned S.D.J.M. and the matter then proceeded on the protest-cum-complaint. On 25.08.2006, the matter was transferred under Section 192 Cr.P.C., to the Court of the learned Judicial Magistrate-Ist Class, Muzaffarpur. The complainant O.P. No. 2 was examined on solemn affirmation on 30.08.2006, thereafter the matter was adjourned at the behest of the complainant, but no witness was produced by him. The only enquiry witness, namely, Hari Shankar Choudhary was examined on 20.12.2006 and thereafter, the matter 4 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014 4 / 14 got adjourned at the behest of the complainant, on most of the occasions and the complainant also failed to appear before the learned court below and from 20.12.2006 to 01.07.2008 time petition were filed on behalf of the complainant and no other witnesses was produced by him. From 13.08.2008 till 02.11.2010 neither the complainant appeared nor produced any witness. Vide order dated 02.01.2011 the learned Magistrate closed further examination of the complainant and fixed the matter for hearing on 28.02.2011 and again the matter was adjourned till 25.05.2012, when process was directed to be issued after cognizance being taken for the offences punishable under Sections 302 and 307 IPC and Section 27 of the Arms Act.
The order of issuance of process including cognizance was not challenged but the petitioner filed an application for discharge under Section 227 Cr.P.C., which was rejected by the learned court below on the ground that even though after suspension of process no further witness was produced for several years, but it has not caused any prejudice to the petitioner. More over, the complainant and one enquiry witness, who was also injured in the occurrence, have supported the prima facie case.
It is submitted by learned counsel for the petitioner that Section 202 Cr.P.C., empowers the Magistrate to suspend the 5 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014 5 / 14 process if the Magistrate is not satisfied about the prima facie case, but it is well settled law that after suspension of process if no further material comes, then the process cannot be issued. In the case of Lalit Madhusudan Chand and Another Vs. Irkus Toppo and Another, (1990) 1 BLJR 340, it has been held that under Section 202 Cr.P.C., the Magistrate, in his discretion, may postpone the issuance of summons unless he finds prima facie case as against the accused persons, on the basis of statement made in the complaint petition, the statement made by the complainant on solemn affirmation and the statement of witnesses examined in an enquiry under Section 202 Cr.P.C.
This Court considered the above issue in Lalit Madhusudan Chand (supra), on the basis of the ratio laid down by the Apex Court in the case of Mohammad Atullah Vs. Ram Saran Mahto, 1981 Cr.L.J. 616, in the following words :-
"It was submitted on behalf of the appellant that the learned Sub-Divisional Magistrate had directed an investigation under Sec. 202 presumably because he was prima facie not satisfied that the complaint and the sworn statement of the complainant justified the issue of the process to the accused. Having directed an investigation under Sec. 202, what was there in the report of the investigation to justify the issue of process to the accused, it was asked. The report of the investigation merely set out the conclusion of the Executive Officer, Samastipur Municipality, without mentioning or referring to any material which would justify the issue of a process. It was, 6 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014
6 / 14 therefore, said that the Chief Judicial Magistrate was wrong in issuing process, on the basis of the report of investigation made by the Executive Officer, Samastipur Municipality. We are afraid the submission has to be accepted. There is no answer to it. As already pointed out by us the Executive Officer Samastipur Municipality, in his report, merely expressed his opinion but mentioned no detail of the investigation made by him and referred to no witness examined by him or any document perused by him. Therefore, when the Chief Judicial Magistrate took cognizance of the case and ordered issue of process against the accused there was no additional material before him except what was already there when he ordered an investigation under Sec. 202 Criminal Procedure Code. Obviously learned Chief Judicial Magistrate, without any reference to any further material, took cognizance of the case and ordered the issue of process to the accused merely on the basis of the opinion expressed by the Executive Officer, Samastipur Municipality. That he was not right in doing."
This Court also considered the issue in the case of Shiva Shankar Prasad Vs. Hardeo Sahay, 1962 BLJR 183 in the following words:-
"It is now well settled that when once a Magistrate refuses to summon the person complained against until after the receipt of an enquiry, it is not open to him to summon the accused before he is satisfied that it is a fit case in which the accused should be summoned. When therefore, a Magistrate doubts the truth of the complaint and orders an inquiry under Section 202 of the Code, he should not proceed further with the case until that doubt has been removed by the receipt of a report by the officer concerned, who holds the inquiry under Section 202 of the Code, if until any other adequate material has been placed before 7 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014
7 / 14 him for the purpose of removing his doubt. If it is found that the original person appointed to hold the enquiry is delaying the matter, or if there is any other good reason, the Magistrate may recall it and entrust the inquiry to some one also, but in no case should process be issued against the person complained against until the enquiry report under Section 202 has been received. Where, therefore, a Magistrate directs an inquiry under Section 202 to be held into a complaint, he should await the result, and it is improper for him to issue process against the person complained against until he receives a report from the inquiry officer, or until any other adequate material is placed before him for the purpose of removing his doubt. If, therefore, a Magistrate summons the accused, without receiving a report of the enquiry under Section 202, or, without any other material having been placed before him for removing his doubt, and, without recording any reason for doing so, his order summoning the accused must be set aside." In the present case, admittedly, no witness was examined after 20.12.2006 and the matter was repeatedly adjourned after suspension of process as the complainant chose not to appear and also because no enquiry witness was produced for examination. Hence, the Magistrate kept the process under suspension for six years and without there being any further material to be convinced about the prima facie case, the processes were directed to be issued but this Court is not inclined to interfere on this score, because the order of cognizance has not been challenged by the petitioner nor it has been pleaded that any prejudice was caused to the petitioner due to non-compliance of 8 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014 8 / 14 the provision under Section 202 Cr.P.C.
So far as second contention of the learned senior counsel for the petitioner, whether it was desirable for the learned Sessions Judge to peruse the case diary while considering the discharge application of the petitioner, is concerned, it is relevant to quote Sections 162 and 172 of the Code of Criminal Procedure to appreciate the issue. Sections 162 and 172 read as follows:
162. Statements to police not to be signed: Use of statements in evidence.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-
examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act 9 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014 9 / 14
172. Diary of proceedings in investigation-(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
[ (1A) The statement of witnesses recorded during the course of investigation under Section 161 shall be inserted in the case diary.] [ (1B) The diary referred to in sub-section (1) shall a volume and duly paginated] (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872(1 of 1872), shall apply."
From the perusal of the aforesaid provision, it is apparent that the statement made by a witness, in course of investigation, cannot be used as a substantive evidence. Section 162 Cr.P.C., imposes a bar on use of statement, made by any person to a police officer in the course of an investigation, during 10 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014 10 / 14 enquiry or at the trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by Section 145 of the Evidence Act. If any part of such statement is to be used, it may be used in the re-examination of such witness for the limited purpose of explaining any matter referred to in his cross- examination. The only other exception to this embargo on the use of statement made in course of investigation relates to the statement falling within the provision of Section 32 of the Indian Evidence Act or permitted to be proved under Section 27 of the said Act. The definition of „proved‟ in Section 3 of the Evidence Act does not enable Court to take into consideration matters, including statements, the use of which is statutorily barred.
Section 172 of the Cr.P.C., provides that "any criminal court may send for the police diaries of a case under enquiry or trial in such court and may use such diaries, not as evidence in the case „but to aid it in such inquiry or trial".
The restraint imposed for the use of case diary is indicated in the case of Habeeb Mohammad Vs. State of Hyderabad, AIR 1954 SC 51 in the following words:
".........Section 172 provides that any criminal court may send for the police diaries of a case under inquiry or trial in such court and may use such diaries, not as evidence in the case „but to aid it in 11 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014 11 / 14 such inquiry or trial‟. It seems to us that learned Judge was in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The only proper use he could make of these diaries was the one allowed by S. 172, Cr. P.C., i.e., during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the State and accused. This he did not do because the diaries were not before him. It was pointed out in- " Queen Empress v. Mannu‟, 19 All 390(FB)(D) by a full court that a special diary may be used by the Court to assist in an inquiry or trial by suggesting means of further elucidating points which need clearing up and which are martial for the purpose of doing justice between the Crown and the accused but not as containing entries which can by themselves be taken to be evidence of any date, fact or statement therein contained. The police officer who made the diary may be furnished with it but not any other witness. The judge made improper use of the diary by referring to it in his judgment and by saying that he intently perused it and the statement of witnesses taken in court were not inconsistent with those that were made by the witnesses before the police officer.
It is difficult to say to what extent the perusal of the case diaries at that stage influenced the mind of the judge in the decision of the case. It may well be that perusal strengthened the view of the Judge on the evidence against the appellant and operated to his prejudice. If there was any case in which it was necessary to derive assistance from the case diary during the trial it was this case and the investigating officer who appeared in the witness box instead of giving unsatisfactory answers to the questions put to him might well have given accurate answers by refreshing his memory from those diaries and cleared up the lacunae that appear in the prosecution case.12 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014
12 / 14 The perusal and use of the case diary within limited and restricted ambit has been summed up by this Court in the case of Basant Singh and others Vs. State of Bihar, 1985 Cr.LJ 1406.
Paragraph 26 reads as follows:
"So the use and perusal of the case diary by a Court is within limitations and restricted ambit. It must be summed as follows :-
(a) It is for aiding an enquiry or trial.
(b) It shall not be used for corroboration or adoption of certain facts transplanted like by conduit pipe.
(c) Use should be sparingly but not as a matter of rule on the principle as at (a)
(d) If Investigating Officer not examined, prejudice to the accused as claimed by the defence has to be considered and looked into and even after perusal of the diary, so permitted, the element of prejudice persists, benefit should be given to the accused of course depending upon the facts and circumstances of each case."
It has been held by this Court in the case of Brahmdeo Hazra and Others Vs. State of Bihar reported in 1988 Cri. L.J., 734 that it is not open for the court to use the police diary under Section 172 of the Cr.P.C., in aid to appreciate the evidence for taking a conclusive decision in the trial and that the appellate court is also not precluded from taking similar stand. Appreciation or non-appreciation is not the point. The question is regarding its permissive and legitimate use by a court. The police diary cannot 13 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014 13 / 14 be used for any purpose other than to be taken in aid to assist the Presiding Judge in an enquiry or trial but as evidence in a case. The use of the police diary cannot go beyond the legitimate limits provided under Section 172 Cr.P.C. The Court cannot take out facts from the police diary as material evidence to arrive at any finding.
It appears that the learned Additional Sessions Judge rejected the discharge application merely on considering the solemn affirmation of the complainant and one enquiry witness examined in the year 2006 when the process was suspended for further enquiry but no witness was examined for six years thereafter. It appears from the order of the learned Magistrate dated 25.05.2012, whereby the process was directed to be issued after cognizance being taken on a protest-cum -complaint that the learned Magistrate relied on several paragraphs, like paragraph nos. 5,8,79 and other paragraphs of the case diary, for arriving at a conclusion that prima facie offence under Sections 302 and 307 IPC and Section 27 of the Arms Act is made out against the petitioner. Hence, in view of the provision under Section 172(2) Cr.P.C., the learned Additional Sessions Judge was not precluded to send for the case diary and take an aid of the same, while considering the discharge application of the petitioner. 14 Patna High Court Cr.Misc. No.9607 of 2014 (4) dt.15-05-2014
14 / 14 In view of the discussions made above, the order dated 17.02.2014 passed by the learned Vth Additional Sessions Judge, Muzaffarpur, in Sessions Trial No. 763 of 2013 is hereby quashed. The matter is remitted back to the learned Trial Court with a liberty to pass a fresh order on the discharge application of the petitioner after giving due opportunities to the informant/complainant.
This application is allowed to the extent indicated above.
Let the order be faxed to the learned court below at the cost of the petitioner.
U.K./Anil/- (Dinesh Kumar Singh, J)