Patna High Court
Bhagwat Pandey And Ors. vs State Of Bihar on 9 May, 1985
Equivalent citations: 1986CRILJ1429
ORDER B.P. Griyaghey, J.
1. This is an application under Section 482 of the Cr. P.C. (in short 'the Code') by the accused persons of Mohania P.S. Case No. 1(10)71 to quash the order dt. 6-10-1980 passed by the Additional Chief Judicial Magistrate, Bhabhua, in that case by which order the Magistrate, after having discharged the petitioners on accepting the Final Report submitted by the Police in the case, subsequently on a protest-petition by the First Informant and after enquiry under Section 202 of the Code on that protest-petition, took cognizance against the petitioners in the case under Sections 307, 436 etc. of the Penal Code by the impugned order.
2. Shorn of unnecessary details, the relevant fact, relevant for the purpose of this application, is that on a F.I.R. lodged by one Suchit Ahir at Mohania Police Station, a case bearing Mohania P.S. Case No. 1(10)71 was instituted under Section 307 and other sections of the Penal Code and the Arms Act. Subsequently, after completion of the investigation, the police submitted Final Form dt. 2-1-1973 stating case maliciously false. It appears that for a long time no order could be passed in the case on the Final Form which was submitted by the police as the record of the case appears to have been sent to the High Court. It may be mentioned that at that time, as the new Code of Criminal Procedure had not come into force, the case began to be adjourned from date to date for a long time awaiting the records back from the High Court. It appears that the First Informant claimed that during that period he had filed a protest petition against the Final Form Report submitted by the Police. It appears that subsequently, it was detected that some records of the case were misplaced, and, therefore, it appears from order dt. 25-2-1980 that when it was noticed by the Sessions Judge, it was ordered by him that the lost records be reconstructed and the matter be disposed of. In pursuance of that order, it appears that the Magistrate again began to dispose of the mattery pending in the case. Then by order dt. 29-4-1980 the Final Form Report was accepted by the Magistrate, and by the same order the Magistrate also directed for hearing on the protest-petition of the First Informant, which was ultimately treated as a protest-complaint. Then on 5-6-1980 the protest-complainant was examined on solemn affirmation and the case was posted for enquiry under Section 202 of the Code. Then the complainant was asked to produce witnesses for that enquiry. Some witnesses were examined by the complainant and then, ultimately, on 6-10-1980, the Magistrate passed the impugned order taking cognizance in the case against the petitioners under Sections 307, 436 and several other sections of the Penal Code. It is against that order that the present application has been filed by accused persons of the case.
3. The learned Counsel for the petitioners has contended three points against the legality of the impugned order taking cognizance against them. I would take up those points one by one. The first point taken by the learned Counsel is that the Final Form in the police case on the same facts having once been accepted, the Magistrate thereafter could not subsequently take cognizance in the case on the protest-complaint. But this contention of the learned Counsel is not correct in view of the definite provisions of law in this respect contained in Sub-section (3) of Section 210 of the Code. In this section provision has been made that when there are two cases, one on the police Report and the other on a complaint on the same facts pending before the Magistrate, Sub-section (2) provides that in such a case if cognizance is taken on the police report, then the cpmplaint case will also merge into and the case will proceed. Sub-section (3) of Section 210 of the Code contemplates a situation that when the Magistrate decides not to proceed with the police case and does not take cognizance in the police case, in that situation Sub-section (3) provides as follows:
If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.
This sub-section provides that in such a case the Magistrate can proceed with the complaint case in spite of the fact that the Magistrate on earlier occasion on the same facts did not take cognizance in the police case. Besides that, there are a large number of decisions of the Supreme Court, for example Chandradeo Singh v. Prokash Chandra Tula Ram v. Kishore Singh Pramatha Nath Talukdar v. Saroj Ranjan Sarkar and Bindeshwari Prasad Singh v. Kali Singh in support of this view.
4. The second point contended by the learned Counsel is that in the present case the Magistrate has contravened the provisions of Proviso to Sub-section (2) of Section 202 of the Code, which runs as follows:
In an enquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
It is contended by the learned Counsel for the petitioners that in a case like the present one in which offence complained of is triable exclusively by the Court of Session, it was incumbent upon the Magistrate to examine all the witnesses of the complainant in the enquiry under Section 202 of the Code. It is submitted by the learned Counsel that only two witnesses were examined in this case and all the witnesses of complaint-petition were not examined by the Magistrate. It is contended that it is incumbent that all the witnesses must be examined, and non-compliance of the same would make the order taking cognizance on such enquiry as illegal. In support of his argument, the learned Counsel has cited a decision in the case of Sri Jayram R. Ranjan Gud v. State of Bihar, reported in 1980 B B C J 265 in which the learned single Judge of this Court observed that the Magistrate must examine all the witnesses before the process is issued in such a case and that the non-compliance of the provision renders the order issuing process and all subsequent orders illegal. But it will be noticed that in this decision itself it has been held by the learned Judge, that if in a case the complainant chouses not to examine all the witnesses, though so called upon by the Magistrate, the examination of the witnesses as offered by the complainant would be sufficient compliance of this provision of law. In the present case, by referring to order dt. 10-6-1980 I find that the Magistrate had passed an order directing the complainant to produce his witnesses. It is no doubt true that in that order the word "all" has not been mentioned, but it will be meant so, because the direction is to produce the witnesses. Such an interpretation was put by their Lordships in a Bench decision of this Court in Criminal Misc. No. 4195 of 1978 (disposed of on 26th March 1980). It was so interpreted in this decision also that if under such circumstances the complainant chose to examine only some of the witnesses, it would not be considered a case of non-compliance of the provisions contained in that Sub-section (2) and the Proviso quoted above.
5. Besides that, the above quoted provision of the proviso to Sub-section (2) cannot be said to be of such mandatory nature as to render the non-compliance of the same to vitiate the jurisdiction of the Magistrate taking cognizance after such an enquiry. Plain reading of this Proviso to Sub-section (2) is that in such a case, which is exclusively triable by a court of session, the Magistrate shall permit the complainant to produce all his witnesses and examine them, during the enquiry under Section 202 of the Code, This appears to be only a permissive nature of the provision, not mandatory in nature. The learned Judge in the case of Jayram R. Ranjan Gud v. The State of Bihar (supra) expressed an opinion that this provision is mandatory in nature due to the fact that the accused will be prejudiced at the trial if there would be no evidence of the prosecution witness taken during the enquiry or investigation before the trial had commenced because an accused would be taken by surprise if the witnesses are produced for the first time during the trial in the Sessions court. But similar point was answered by the learned Judges in a Division Bench decision of this Court in Cr. Misc. No. 4195 of 1978 (supra) by stating that this provision of Section 202 of the Code relates to the procedure when in a complaint-case an enquiry under Section 202 of the Code has been started, but there can be a complaint-case relating to an offence exclusively triable by a court of session, in which cognizance may be taken simply on the statement of the complainant on solemn affirmation, without holding an enquiry under Section 202 of the Code. In that event, there cannot be such statements of the witnesses of the prosecution before the trial in the sessions court begins. On this argument it was held by their Lordships in that Division Bench case Cr. Misc. No. 4195 of 1978 (supra) that cognisance can be taken in such a case even without the evidence of the prosecution witnesses taken before the trial commences in the sessions court and, therefore, this provision contained in the proviso to Sub-section (2) of Section 202 of the Code cannot be said to be mandatory in nature.
6. That apart this provision of law contained in that Proviso was complied with in the present case. The contention of the learned Counsel that the non-compliance of the provision would render the order taking cognizance in the present case as illegal, cannot be acceptable.
7. The third ground taken by the learned Counsel for the petitioners to quash the order taking cognizance is that this occurrence relates to the year 1971, and that, therefore, the proceeding should not be allowed to continue. In this connection learned Counsel has relied on a decision in the case of State of U.P. v. Kapildeo Shukla in which the Supreme Court refused to interfere with the order of the High Court quashing the proceeding of a case on the ground that the trial had protracted for twenty years. The present case is not of that nature. That case related to the offences under Sections 408 and 477A of the Penal Code. In the present case, the cognizance has been taken by order dt. 6-10-1980. The delay in this respect in taking cognizance was mainly on account of the fact that the record of the case had been lost, which was reconstructed. In this connection, reference to the case of R. P. Kapur v. State of Punjab has been made in which police was negligent in not submitting its report under Section 173 Cr. P.C. for several months and a prayer was made to quash the proceeding on that account. The High Court refused that prayer which refusal was supported by the Supreme Court. The present case is a case under Sections 307 and 436 and other sections of the Penal Code which are very serious in nature. It was no fault on the part of the complainant that the Magistrate could take cognizance in this case in Oct. 1980. That was mainly upon the fact that the records were lost. Therefore, in the circumstances of the case, I do not think that it is a fit case in which the proceeding should be quashed on account of that delay in concluding the proceeding.
8. In the result, I do not find any merit in any of the grounds taken by the petitioners' counsel.
9. The application is, therefore, dismissed.