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Rubi Khatoon vs State Of Bihar And Ors. on 10 November, 2006

Patna High Court
Rubi Khatoon vs State Of Bihar And Ors. on 10 November, 2006
Author: N P Singh
Bench: N P Singh


JUDGMENT

Navaniti Prasad Singh, J.

1. Heard.

2. Learned Counsel for the petitioner states that the learned Sessions Judge erred in exercising jurisdiction to set aside the order taking cognizance in respect of her in-laws. On her behalf, it is submitted that in course of investigation itself, the petitioner being the informant (wife) had filed a protest petition before the Court alleging that the Investigation Officer had been won over. After investigation and supervision, a chargesheet was filed sending up only the husband for trial of an offence under Sections 498A and 323 of IPC. The learned Chief Judicial Magistrate, apparently perusing the case diary and in specific referring to four paragraph thereof, disagreed with the chargesheet and took cognizance against the husband of the petitioner and the in-laws who had not been sent up for trial. The learned Magistrate did not reject the chargesheet or the investigation and did not choose to proceed on basis of the pretest petition. The petitioner submits that there was ample material in the protest petition which had been filed and, as such, having taken cognizance against all, the Magistrate committed no illegality and the same ought not to have been interfered with by the learned Sessions Judge. The learned Sessions Judge, by the impugned order, set aside the order taking cognizance so far as non-chargesheeted persons were concerned.

3. I have perused the order of the learned Sessions Judge who had examined all the paragraphs, as mentioned by the learned Chief Judicial Magistrate, to see whether there was any material found in course of investigation against the non-chargesheeted persons. He has noted that there was no material in those paragraphs as found by the Investigating Officer and, therefore, he set aside the order taking cognizance of offences under Sections 498A, 323/34 of IPC as against non-chargesheeted persons in absence of material in the case diary.

4. Petitioner’s submission that there were materials in the protest petition cannot be of any benefit to the petitioner. It is well settled that under Section 190 of Cr P C, the Magistrate has options first to take cognizance of an offence on basis of a written complaint of facts constituting offence. Alternatively, he has power to take cognizance of an offence on basis of a chargesheet based on materials in the case diary. Thirdly, he can take cognizance on basis of information available to him otherwise of an offence having been committed.

5. So far as the second category is concerned that is on basis of chargesheet, it is now well settled by series of decisions of this Court and other Courts including in the case of Kuli Singh and Ors. v. State of Bihar and Anr. since reported in the case of 1978 PLJR 500 (Full Bench) wherein it has been held that the Magistrate is not bound by the manner in which chargesheet is submitted. That is in the chargesheet, there may be three sets of persons. First who are sent up for trial, second who are not sent up for trial and third those against whom investigation is pending. The Magistrate may, on perusal of the case diary which is an integral part of the chargesheet, find that there are materials in the case diary as against non-chargesheeted persons, persons not sent up for trial, he may then disagree with the chargesheet to that extent and take cognizance but the Magistrate is precluded from adopting a high breed system whereby for facts he cannot look into the protest petition but still proceed on basis of the chargesheet. He has to proceed either on the protest petition exclusively or on the chargesheet exclusively. He can reject the chargesheet without passing any order and accept the protest petition and proceed on basis thereof.

6. In the present case, the petitioner asserts about the protest petition. Regrettably, the order of the learned Chief Judicial Magistrate does not even refer to the said protest petition. Had he referred the protest petition and proceeded to take cognizance on basis of chargesheet, he would again have acted without jurisdiction.

7. In view of the facts and the legal position as stated above, I find no merit in this application. This application is, accordingly, dismissed.

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