CRIMINAL MISCELLANEOUS No.21941 OF 2000
In the matter of an application under Section 482 of the Code of
Criminal Procedure
-------------
BASUDEO MAHTO, Son of Siban Mahto, resident of Village-
Kamarthu, P.S. Karai, District-Nalanda — Petitioner
Versus
THE STATE OF BIHAR
————–
For the petitioner: S/Sri Rajendra Prasad, Sr.Advocate
Pramod Kumar &
Ritesh Kumar, Advocates
For the State: Smt. Indu Bala Pandey, A.P.P
———–
PRESENT
THE HON’BLE MR. JUSTICE RAKESH KUMAR
Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this
Court under Section 482 of the Code of Criminal Procedure, has prayed
for quashing of an order dated 1.5.2000 passed by the learned Addl.
Chief Judicial Magistrate, Hilsa, whereby he has taken cognizance of
offences under Sections 302,120B/34 of the Indian Penal Code in Hilsa
P.S. Case No.58 of 1999 on the basis of supplementary chargesheet
submitted by the police.
2. Short fact of the case is that the petitioner was made one of the
accused along with three other accused persons in Hilsa P.S. Case No.58
of 1999 on an allegation of murdering younger brother of the informant.
Since in the present case, the question, which has been raised by the
learned counsel for the petitioner, that after submission of chargesheet
and exoneration of the petitioner by the Officer Incharge without
collecting any material further chargesheet is not permissible, the order
of cognizance is bad, it is not necessary to give detail of the allegation
2
levelled against the petitioner. In the case, initially the petitioner along
with three other accused persons was named as accused in the F.I.R.
Since the petitioner was named accused in the F.I.R. , he was taken in
custody during the investigation of the case. Subsequently, the police
after collecting materials and completing the investigation submitted
chargesheet vide Chargesheet No.45 of 1999 on 11.6.1999 against three
accused persons and the petitioner was recommended for his discharge
and in the chargesheet it was also requested for issuance of release order
in favour of the petitioner. After submission of chargesheet, learned
Magistrate took cognizance of offences in respect of three other accused
persons, who were forwarded by the police. So far the petitioner is
concerned, as per recommendation of the police, learned Magistrate,
while discharging, directed for issuance of release order vide its order
dated 14.6.1999. After the petitioner was released, a supplementary
chargesheet vide Chargesheet No.111 of 1999 on 29.12.1999 against the
petitioner was filed. After submission of supplementary chargesheet ,
the learned Magistrate vide its order dated 1.5.2000 took cognizance of
offences and summoned the petitioner to face trial.
3. Aggrieved with the order of cognizance dated 1.5.2000 passed
by the learned Addl.Chief Judicial Magistrate, Hilsa, the petitioner
approached this Court by filing the present petition. In view of the
Judgment cited by learned counsel for the petitioner, reported in 1994
(2) PLJR 96( Jamuna Pathak Vs. The State of Bihar and another), this
case was admitted for hearing vide its order dated 15.2.2002. While
admitting, it was directed that during the pendency of this application,
operation of the order dated 1.5.2000 passed by the Additional Chief
3
Judicial Magistrate, in Hilsa P.S. Case No.58/99, was directed to remain
stayed. It was clarified that the order of stay may not be construed to
mean that further proceeding in respect of other accused persons has
been stayed. However, at the time of hearing of this petition, Sri
Rajendra Prasad, learned Senior Counsel appearing on behalf of the
petitioner informs the Court that the trial in respect of three other
accused persons is still continuing.
4. While challenging the impugned order, Sri Rajendra Prasad,
learned Senior Counsel for the petitioner has submitted that firstly, on
the basis of materials collected during the investigation the petitioner
was exonerated and final form in respect of petitioner was submitted by
the police. However, three other accused persons were forwarded to face
trial. After submission of the chargesheet/ final report, learned
Magistrate, while discharging the petitioner, directed for issuance of
release order, since the petitioner was already in custody and thereafter
the petitioner was discharged and released from the custody.
Subsequently, without collecting any material it appears that only on
the direction of Senior Officer, supplementary chargesheet was
submitted against the petitioner. It was submitted that under the
provision of Section 173 of the Code of Criminal Procedure without
collecting further material supplementary chargesheet was not
permissible and on the basis of such chargesheet , the learned
Magistrate was not required to take cognizance of the offences and
accordingly, the order of cognizance is liable to be set aside. Learned
Senior Counsel for the petitioner at the time of hearing has heavily relied
on a Division Bench Judgment of this Court, reported in 1994 (2) PLJR
4
96 (Jamuna Pathak Vs.State of Bihar & Anr.). In the said case also, after
submission of chargesheet without conducting any further investigation
or collecting any further materials, supplementary chargesheet was
submitted and on the basis of said supplementary chargesheet ,
cognizance order was passed. Accordingly, this Court was of the
opinion that in the eye of law, such supplementary chargesheet was not
the supplementary chargesheet in the eye of law and on the basis of such
chargesheet, cognizance order was not sustainable and the same was set
aside.
5. In the present case, earlier case diary was called for, which
has been received. On perusal of the case diary, Smt. Indu Bala Pandey ,
learned Addl.Public Prosecutor appearing on behalf of the State
candidly accepts that during the further investigation, no new material
was collected. However, supplementary chargesheet was submitted. It
was submitted by Smt. Pandey, learned Addl.Public Prosecutor that
even prior to submission of first chargesheet sufficient materials were
collected against the petitioner showing his involvement. However, she
does not dispute that during further investigation no new material was
collected and without any new material supplementary chargesheet was
submitted. In view of admitted position that without collecting any
further material , supplementary chargesheet was submitted in the
present case against the petitioner, the Court has got no option but to
quash the order of cognizance dated 1.5.2000, which has been passed on
the basis of supplementary chargesheet No.111 of 1999. However, it is
made clear that if during the trial, sufficient material is brought on
record, it will be open for the trial court to proceed with the case in
5
accordance with the provision contained in Section 319 of the Code of
Criminal Procedure.
6. With above observation and direction, the order of cognizance
dated 1.5.2000 in Hilsa P.S. Case No.58 of 1999 passed by learned
Addl. Chief Judicial Magistrate, Hilsa is hereby set aside and the
petition stands allowed.
( Rakesh Kumar, J.)
Patna High Court,Patna
Dated : the 15th November,2010
Nawal Kishore Singh/ N.A.F.R.