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VIJAY KANT THAKUR & ANR. V. THE STATE OF BIHAR & ANR. 2010

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VIJAY KANT THAKUR & ANR. vs. THE STATE OF BIHAR  & ANR. 2010

CASE NAME:VIJAY KANT THAKUR & ANR. V. THE STATE OF BIHAR & ANR. 2010
EQUIVALENT CITATION:2011 (59) BLJR 390, 2010 CriLJ 4190, 2011(1) JCR 485 (Pat)
DATE OF JUDGEMENT:03 May, 2010
COURT:HIGH COURT OF PATNA 
CASE TYPE:CRIMINAL MISCELLANEOUS CASE
CASE NUMBER:Cr. Misc. No. 801 of 2008
PETITIONER:VIJAY KANT THAKUR, SON OF LATE TARA KANT THAKURMANTOO THAKUR @ AVINASH KUMAR THAKUR SON OF AMOL THAKUR
RESPONDENT:THE STATE OF BIHAR CHALITAR SAHNI, SON OF LATE YADU SAHANI
BENCH:JUSTICE SAMARENDRA PRATAPJUSTICE J. SINGH
COUNSEL:FOR PETITIONER: M/S SHAKTI SUMAN KUMAR , RAJESH RANJANFOR RESPONDENTS: A.P.P. , M/S MD. KAMRAN , M.D. MOJIB AHMAD 
ISSUE:CODE OF CRIMINAL PROCEDURE (2 OF 1974) SECTIONS : 173(2), 482, 204, 190

FACTS OF THE CASE:

The Petitioners had challenged the order which was passed in the Simari P.S. Case No. 125 of 2005. The Chief Judicial Magistrate, Darbhanga took the cognizance for the offence under Section 302/34 of the IPC and then summoned the petitioners to face the trial.

The Respondent of this case ( Chalitar Sahni) had filed a written complaint (FARDBEYAN) in the D.M.C.H. Emergency Ward wherein he stated that on the same day around 7 pm. 22 accused along with others which also included the petitioners of this case were waiting at Kanshi Manihash Chowk. As soon as the informant,  along with his brothers Sita Ram Sahni and Inder Sahni, reached the Chowk, on the order of the petitioner No.1 : Vijay Kant Thakur another accused Nathuni Sahni hurled a knife blow in the chest of Sita Ram Sahni.

On 27.06.2003, the police after the receipt of the complaint initially submitted a chargesheet against two named accused persons namely; Guletan Sahni and Guddu Sahni and two unnamed accused namely Tetar Sahni and Pitambar Sahni. The investigation was kept pending against the remaining accused. The learned magistrate then took cognizance of the offence under Section 302/34 of the Penal Code and then summoned the four charge-sheeted accused to face the trial. After the conclusion of the investigation, the police submitted a final report in favour of the petitioners and other remaining accused. However, the learned Magistrate by its order dated 17.08.2005 differed from the police report and summoned these two petitioners along with Nathuni Sahni, to face the trial.

The prosecution case was lodged against 22 named accused persons, including petitioners and some unknown. The police after investigation submitted a partial charge sheet on 27.06.2003, whereas the investigation against the remaining accused was kept pending. The Magistrate taking cognizance under Section 190 of the offences under Section 302/34 of the Penal Code summoned the four charge-sheeted persons to face trial. The police after completing its entire investigation, submitted the final report / supplementary charge sheet on 31.01.2004 not sending any further accused for trial. The Magistrate vide his order dated 17.08.2005 differing with the police report summoned the petitioners and Nathuni Sahni. However, the remaining seventeen accused were acquitted since there was no sufficient materials to proceed against them.

ISSUES RAISED:

CONTENTION OF THE PETITIONERS:

The Learned Counsel for the petitioner violently criticised the impugned order (an order which is not a final order) and presented its arguments on the following grounds:

  1. Once Cognizance is taken and the accused is summoned to face the trial, the Magistrate does not have any powers to take cognizance and summon further accused to face trial.
  2. Once the Cognizance is taken and Stage of Committal starts and the Magistrate cannot further add other accused in the list of accused, against whom already processes have been issued, till stage of Article 319 of Cr.P.C. is reached.
  3. The Magistrate, though there were identical allegations against other 17 accused persons, took cognizance against the two petitioners only.

           While supporting his contention, learned counsel relied upon decisions made in the case of  Raj Kishore Prasad vs. State of Bihar & Anr. AIR 1996 SC 1931 and in the case of Kishori Singh and Ors. vs. State of Bihar & Anr. AIR 2000 SC 3725.

CONTENTION OF THE RESPONDENT:

The Counsel for the respondent submitted:

  1. The impugned order dated 17.08.2005 summoning the petitioners to face trial under Section 302/34 of the Penal Code was justified.
  2. As long as the stage of Section 190(b) is not over there is no bar on the power of the Magistrate to summon the accused persons against whom there is sufficient evidence to proceed.
  3. The Police submitted a partial chargesheet earlier on 27.06.2003 against the 4 accused persons. The investigation against others was kept pending and the Magistrate then took cognizance against the four accused persons against whom the chargesheet was submitted.
  4.  On the conclusion of the investigation and the supplemental charge sheets submitted by the police, the Magistrate took cognizance against the petitioners and Nathuni Sahni (against whom the investigation was kept pending.).

             In support of his contention, the counsel for the respondent relied upon a decision in the case of Swill Limited vs. State of Delhi AIR 2001(4) PLJR (SC) 163.

JUDGEMENT OF THE SUPREME COURT:

  1. The honourable court defining the unfettered (Unrestrained) power of the Police Officer to investigate a case stated that a court should not normally interfere in the investigation of the police unless and until the investigation carried on by the police is biased. The police can in its course of investigation submit one police report under Section 173(2) as well may then submit more than one supplementary report or charge sheets. Though Submission of one Police Report under Section 173 of CrPC is always desirable.
  2. Court further defines that a police officer can adopt one of following courses based on the facts of the investigation:
    1. Police may submit its report under Section 173(2) or one charge sheet after completion of total investigation.
    2. Police can submit a charge sheet against one or few of the accused while continuing its investigation against the remaining.
    3. After the submission of the report under Section 173(2) after completion of total investigation, the police may make further investigation under Section 173(8) against a person in respect of other offences and also against those persons who have not been charge-sheeted or sent up for trial.
    4. In exceptional circumstances the police may, on the orders of court, re-investigate the case afresh which is usually done pursuant to court orders transferring a case from one agency to another.
  3. The act of the Magistrate will be fully justified in issuing summons to the person against whom the evidence may appear on submission of such successive or supplementary charge-sheet.
  1. The decision of the SC in the above case made it evident that there is no bar on the power of the Magistrate to summon the accused persons on different date till the stage under S.190(b) is not over.
  2. The court declared that the decisions rendered in the cases of Raj Kishore Prasad vs. State of Bihar & Anr. AIR 1996 SC 1931 and Kishori Singh and Ors. vs. State of Bihar and Anr. AIR 2000 SC 3725 were not of any help to the petitioner of this case as these cases were clearly an authority to the proposition that a Magistrate undertaking commitment under Section 209 of CrPC of a case triable by Court of Sessions cannot associate or add a person as an accused. In such circumstances a person can be added as an accused only at the stage of Section 319 of CrPC and not even at a stage of Section 193.
  1. Since the petitioner referred to the case of Raj Kishore Prasad; the High Court held that there was an issue that whether a Magistrate undertaking commitment under Section 209 of a case triable by a court of sessions can associate another person as accused. The SC held that the Magistrate at the stage of section 209 CrPC cannot apply his mind to the merit of the matter and determine whether an accused is to be added or subtracted as committal of case under S. 207 to 209 is not an enquiry as visualised under S.2(g) or 319. Magistrate’s functions at this stage is merely preliminary and ministerial.
  2. The petitioner also relied on the case of Kishori Singh and Anr. vs. State of Bihar AIR 2000 SC 3725. Regarding the aforesaid case, after the conclusion of the investigation the police submitted the chargesheet against some of the named accused persons. The Magistrate then took cognizance against the charge sheet accused under Section 302/34 of the IPC. Thereafter, on same and on the prayer of the prosecution, the Magistrate also summoned the appellant Kishori Singh who was not even charged by the police. The SC held that the Magistrate could not summon the additional person as an accused till the stage of S.319 of CrPC is reached, as the stage of cognizance was over, no investigation was pending.
  3. The Patna High Court held that the aforesaid cases had no importance to the current case, as mentioned in the above cases the investigation was concluded and not left pending unlike the current case. In the aforesaid case, the stage under Section 190(1)(b) read with Section 204 of CrPC was over and the case was merely to be committed to the court of sessions. In the current case, the court stated that the stage of summoning under Section 190(1)(b) and 204 of CrPC was not over, as the police investigation was pending against some accused persons.
  4. Initially only the partial charge sheet was filed while the investigation against the majority of the accused remained pending. Later on when the investigation was concluded, the Magistrate took cognizance and summoned the accused against whom the court found prima facie materials to proceed with. The court stated that it is well settled that a Magistrate can differ with police opinion, even in triable cases, if it finds that there is sufficient material to proceed even against the persons not set up for trial.
  5. The court also said that once investigation is completed against all accused and cognizance is taken, a stage of committal under sec. 207 to 209 comes in existence in sessions triable cases and then no accused can be added or subtracted by Magistrate, as a stage of taking cognizance and summoning accused under S. 190 and 204 of CrPC is over. A stage of committal of a case qua accused person generally begins only when investigation finally concludes. The stage of taking cognizance upon a police report under S. 190(1)(b) was not over yet as the investigation had not concluded and come to an end.
  6. The court thus held that the contention of the petitioner’s counsel that once the court has summoned some of the accused persons on submission of partial charge sheet, it cannot summon other accused persons against whom investigation has been kept pending, even though sufficient materials may appear against them in the supplemental final report or charge sheet, is fit enough to get rejected. The court also said that accepting petitioner’s submission shall lead to anomalous consequences and the accused shall go scot free.
  7. The court also cited the case of Ram Lal Narang vs. State (Delhi Admin) AIR 1979 SC 1791 while considering the current case; in this case of Ram Lal a chargesheet was submitted against Ram Lal Narang and others and the cognizance was taken accordingly. The police also filed a supplementary charge sheet against H.L. Mehra. The SC observed that on filing of such supplementary charge sheet it is well within the power of the Magistrate to take cognizance.
  8. The court also considered that there have been various other cases where there are more than one accused, while some of them are apprehended,  the others remain at large. The Police submits a partial charge sheet against these accused so as to prevent them from benefit of compulsive bail under S. 167(2). The court may take cognizance against the accused against whom a charge sheet has been submitted and may await some summoning the remaining. The Magistrate shall also have the power to take cognizance against the remaining, if there are some materials on record.
  9. Thus the court said that if the petitioner’s submission is to be accepted by the court then the accused who are at large and against whom supplemental investigation is pending cannot be summoned to face trial even if sufficient material comes in the course of investigation. Such an interpretation may be disastrous to society.
  10. The court stated that in the instant case the stage of taking cognizance upon a report was not over as the investigation had not come to an end against the other accused. Similarly, the stage of summoning the accused under S.204 too was not over, thus the Magistrate on conclusion of pending investigation took cognizance against the petitioners and Nathuni Sahni and summoned them to face the trial.
  1. Thus the Court declares that the submissions of the petitioners are devoid of merit and thus is rejected.
  2. Thus the Court finds no illegality in the impugned order passed by the Chief Judicial Magistrate, Darbhanga taking cognizance and summoning the petitioners to face trial under Sec. 302/34 of the IPC. The application is thus dismissed.

WRITTEN BY: SHRIKRISHNA GOYAL, B.A. LLB. 6th SEM, IMS LAW COLLEGE, NOIDA

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