Criminal Miscellaneous No.29646 OF 1999
----
In the matter of an application under Section
482 of the Code of Criminal Procedure, 1973.
—-
GOPAL LAL SIZUAR, SON OF LATE NARAIN LAL KATARIAR
RESIDENCE OF SIZUAR STATE, RAM SAGAR, POLICE
STATION- CIVIL LINES, DISTRICT GAYA.
... ... PETITIONER.
Versus
1. THE STATE OF BIHAR
2. BABAN LAL BARIK S/O BHARAT LAL BARIK R/O MOHALLA
KRISHNA DWARKA, P.S. CIVIL LINES, DISTRICT GAYA.
... ... OPPOSITE PARTIES.
----
For the Petitioner : M/S Ashwini Kumar Singh, Sr.Adv.
Pankaj Kumar Das,Adv.
Pankaj Kumar Singh,Adv.
For the State : Mr. Lala Kailash Bihari Prasad,A.P.P.
For O.P. No.2 : Mr. Ranjeet Kumar, Adv.
----
P R E S E N T
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 20.9.1999 passed by
Sri B.M. Ray, Judicial Magistrate, Ist Class, Gaya
in G.R. Case No.89 of 1990/Trial No.529 of 1999
arising out of Gaya Civil Lines P.S. Case No.12 of
1999. By the said order, the learned Magistrate has
summoned the petitioner as an additional accused in
the case for offence under Sections 147, 149, 323,
324/34 of the Indian Penal Code.
2. Short fact of the case is that on the
-2-
basis of fardbeyan of opposite party no.2, an
F.I.R. vide Gaya Civil Lines P.S. Case No.12 of
1999 was registered on 9.1.1999 for the offence
under Sections 147, 148, 324, 323, 379 of the
Indian Penal Code. In the F.I.R., seven persons
including this petitioner were named as an accused
in Column No.7. Fardbeyan of informant was recorded
on 7.1.1999 at about 4.00 P.M. in Paligram
Hospital, Gaya by the Sub Inspector of Police,
Kotwali Police Station, Gaya. It was disclosed in
the fardbeyan that on the same day at about 1.00
P.M., while he was returning from Gaya Railway
Station, on way, he was intercepted by seven
accused persons including the present petitioner
and they started abusing the petitioner. When the
informant asked not to abuse all the accused
persons infuriated. It was disclosed that some of
the accused persons were carrying gupti and lathi.
In the said occurrence, this petitioner by abusing
the informant ordered other accused persons to kill
the informant and thereafter, accused Sugolal
Pathak inflicted gupti blow over the informant
which hit on the right hand of the informant.
Accused Chhotelal Meharwar had assaulted him with
lathi and rest of the accused persons assaulted the
-3-
informant by fist. It was also alleged that one of
the accused persons in the said occurrence forcibly
took his watch from his hand and thereafter, on
hulla being raised by the informant, several
persons assembled there and witnessed the
occurrence. On the basis of fardbeyan, an F.I.R.
vide Gaya Civil Lines P.S. Case No.12 of 1999 was
registered and police started investigating the
case. After investigation, police submitted charge
sheet against six accused persons for the offence
under Sections 147, 148, 323, 324 of the Indian
Penal Code. However, the allegation of snatching of
watch was found untrue.
3. After submission of charge sheet,
learned Chief Judicial Magistrate, Gaya perused the
same as well as case diary. The learned Magistrate
by its order dated 22.4.1999 dropped the proceeding
against the petitioner. However, the court was
satisfied that prima facie case under Sections 147,
148, 324 of the Indian Penal Code was made against
six F.I.R. named accused persons shown in Column
No.4 of the charge sheet and, accordingly, after
taking cognizance, learned Chief Judicial
Magistrate directed for issuance of summons and
transfered the case to the court of Shri P.R.
-4-
Mishra, Judicial Magistrate, Ist Class, Gaya for
disposal in accordance with law and thereafter, on
the date of framing of the charge i.e. on 4.8.1999,
a petition was filed on behalf of the informant
indicating therein that police in connivance with
this petitioner had submitted final report in his
favour. It was further stated that there were
enough material in the case diary itself warranting
summoning of the petitioner. The learned Judicial
Magistrate, by its order dated 20.9.1999, allowed
the petition dated 4.8.1999 and directed for
issuance of summon to this petitioner.
3. Aggrieved with the order dated
20.9.1999, the petitioner approached this Court by
filing the present petition.
4. While challenging the order dated
20.9.1999, Shri Ashwini Kumar Singh, learned Senior
Counsel appearing on behalf of the petitioner,
submits that the order impugned was without
jurisdiction and contrary to the procedure
prescribed in the Code of Criminal Procedure. It
was argued that once the learned Chief Judicial
Magistrate had dropped the proceeding relating to
the petitioner by its order dated 22.4.1999, the
transferee Magistrate was having no jurisdiction to
-5-
pass an order for summoning the petitioner which
amounts to review of earlier order. It was argued
that review of an order by the Magistrate was not
permissible and it is prohibited under Section 362
of the Code of Criminal Procedure. Learned Senior
Counsel, in support of his stand, has relied upon
several judgments of Hon’ble Supreme Court reported
in 2008(4)SCC 82 (R. Rajeshwary Vs. H.M. Jagdish),
2005(12)SCC 361 (Surendra Singh Vs. State), 2008(2)
PLJR SC 167 (Sumita Jain Vs. Pawan Kumar Jain) and
2006(1) SCC 273 (Dharampal Vs. State of Haryana).
Shri Ashwini Kumar Singh, relying on the aforesaid
judgments as well as while referring to the
provisions contained in Section 362 of the Code of
Criminal Procedure, has argued that the impugned
order i.e. order dated 20.9.1999 passed by the
Judicial Magistrate, Gaya amounts to review of
order dated 22.4.1999 passed by the Chief Judicial
Magistrate, Gaya. It was further argued that for
the purposes of adding a person as accused for
facing trial along with accused persons, who are
already put on trial, there is only one provision
in the Code of Criminal Procedure i.e. Section 319
of the Code of Criminal Procedure. It was submitted
that power under Section 319 of the Code of
-6-
Criminal Procedure is to be exercised in a case
where some evidence showing involvement of a person
is brought on record. It was submitted that
evidence as per provision contained in Section 3 of
the Evidence Act means that unless oral or
documentary material is placed during the trial
before the court, it cannot be considered as
evidence and in absence of any such evidence power
under Section 319 of the Code of Criminal Procedure
cannot be exercised. It was submitted that in the
present case, whatever material was available on
the date of dropping the case of the petitioner
i.e. on 22.4.1999 whereby after dropping the case
of the petitioner, learned Chief Judicial
Magistrate had taken cognizance in respect of other
accused, same materials were available on the date
of impugned order i.e. order dated 20.9.1999.
Accordingly, Shri Singh has submitted that in
absence of any new evidence/material, the learned
Magistrate was not entitled to pass an order for
summoning the petitioner to face the trial at the
stage of charge.
5. Learned Senior Counsel besides
submitting that the impugned order is liable to be
set aside on the ground that review of earlier
-7-
order was not permissible, has faintly argued that
the petition dated 4.8.1999, which was filed by the
informant for summoning the petitioner was not
maintainable. He submits that under the Code of
Criminal Procedure, the informant or his counsel is
required only to render assistance to the Public
Prosecutor, but in the present case, the informant
himself had filed petition before the Magistrate
and as such the petition was liable to be ignored
by the learned Magistrate, but instead of ignoring
the same, the learned Magistrate had proceeded on
the said petition and thereafter, impugned order
was passed. On aforesaid grounds, learned Senior
Counsel for the petitioner has prayed for quashing
of the order dated 20.9.1999 passed in G.R. Case
No.89 of 1990/Trial No.529 of 1999 arising out of
Gaya Civil Lines P.S. Case No.12 of 1999.
6. In this case, Shri Ranjeet Kumar,
learned advocate has appeared on behalf of opposite
party no.2 and he has vehemently opposed the prayer
of the petitioner. In this case, Shri Lala Kailash
Bihari Prasad, learned Senior Counsel appearing on
behalf of the State has rendered assistance to the
court for coming to the just decision in the
present case.
-8-
7. Shri Ranjeet Kumar, learned advocate
appearing on behalf of opposite party no.2 has
heavily relied upon a judgment of Hon’ble Supreme
Court reported in A.I.R. 1967 SC 1167 (Raghubansh
Dubey Vs. State of Bihar). Learned counsel for the
opposite party no.2 has referred to paragraph-10 of
Raghubansh Dubey’s case (Supra), which says that
“when a Magistrate takes cognizance under Section
190(1)(b) on a police report he takes cognizance of
the offence and not merely on the particular
persons named in the charge sheet, and, therefore
the Magistrate is entitled to summon additional
accused against whom he considers that there was
good evidence, after perusal of statements recorded
by the police under Section 161 of the Cr.P.C. and
the other documents referred to in Section 173 of
Cr. P.C. even without examination of witnesses in
court”. Accordingly, he has argued that in the
present case, after examining the case diary and
looking into the statement of witnesses recorded
under Section 161 of the Code of Criminal Procedure
and only after being satisfied regarding the
involvement of the petitioner in the crime of the
present case, the learned Magistrate, has rightly
by its order dated 20.9.1999, has directed for
-9-
issuance of summon against the petitioner.
According to learned counsel for the opposite party
no.2, the order dated 20.9.1999 passed by the
learned Magistrate is in strict compliance with the
provisions contained in the Code of Criminal
Procedure and need no interference by this Court.
8. Besides hearing, learned counsel for
the parties, I have also examined the materials
available on record of the present case. In the
case, on perusal of the copy of the charge sheet,
which has been annexed as Annexure-2 to the
petition, it is evident that though seven persons
were named as accused, name of six accused persons
were included in accused column of the charge
sheet, who were sent up for trial. The name of
petitioner was incorporated in Column No.2 of the
charge sheet. It is further evident that during the
investigation, the allegation of informant in
respect of commission of offence under Sections
147, 148, 323 and 324 of the Indian Penal Code was
found true. However, the allegation of snatching of
watch was found untrue.
9. On perusal of order dated 22.4.1999, it
appears that the learned Chief Judicial Magistrate,
while recording a sentence in the order that “the
– 10 –
proceeding of the case against accused Gopal Lal
Sizuar is hereby dropped”, has committed an error.
In its order dated 22.4.1999, the learned Chief
Judicial Magistrate was required to take cognizance
of the offence and there was no occasion for him to
record a finding for dropping the case in respect
of the petitioner particularly in view of the fact
that in the charge sheet, the petitioner’s name had
occurred in Column No.2. At this stage, it is
necessary to indicate that even in a situation
where an F.I.R. named accused is not recommended
for trial and police recommends for prosecuting
other accused persons, a Magistrate is well
competent to take cognizance of offence even
against accused not sent up for trial, if there is
material on record to show his involvement.
10. So far as present case is concerned,
it is not in dispute that till the date of passing
of the impugned order, no witness was examined.
Once on the same material, the learned Chief
Judicial Magistrate, rightly or wrongly, had passed
order for dropping the case against the petitioner
on the same material the transferee Magistrate was
not required to summon the petitioner without any
evidence brought on record at subsequent stage.
– 11 –
11. In the facts and circumstances of the
present case, particularly in view of the fact that
for an occurrence which took place on 8.1.1999, no
progress could take place in the case before the
court below since criminal proceeding in G.R. No.89
of 1999/Tr. No.529 of 1999, arising out of Gaya
Civil Lines P.S. Case No.12 of 1999 was stayed by
this Court on 21.2.2000, at this belated stage it
would not be proper to direct the petitioner to
participate in the proceeding before the court
below.
12. Accordingly, for the ends of justice,
it is desirable to quash the order dated 20.9.1999
passed by Sri B.M. Roy, Judicial Magistrate, Ist
Class, Gaya in G.R. No.89 of 1999/Tr. No.529 of
1999, arising out of Gaya Civil Lines P.S. Case
No.12 of 1999 and same is hereby quashed. Petition
stands allowed.
( Rakesh Kumar,J.)
PATNA HIGH COURT
Dated 3rd August, 2010
N.A.F.R./N.H.