{"id":208918,"date":"2006-04-12T00:00:00","date_gmt":"2006-04-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/minu-kumari-and-anr-vs-the-state-of-bihar-and-ors-on-12-april-2006"},"modified":"2017-09-22T10:08:06","modified_gmt":"2017-09-22T04:38:06","slug":"minu-kumari-and-anr-vs-the-state-of-bihar-and-ors-on-12-april-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/minu-kumari-and-anr-vs-the-state-of-bihar-and-ors-on-12-april-2006","title":{"rendered":"Minu Kumari And Anr vs The State Of Bihar And Ors on 12 April, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Minu Kumari And Anr vs The State Of Bihar And Ors on 12 April, 2006<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, S.H. Kapadia<\/div>\n
           CASE NO.:\nAppeal (crl.)  420 of 2006\n\nPETITIONER:\nMinu Kumari and Anr.\n\nRESPONDENT:\nThe State of Bihar and Ors.\n\nDATE OF JUDGMENT: 12\/04\/2006\n\nBENCH:\nARIJIT PASAYAT & S.H. KAPADIA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of (SLP (Crl.) No. 4607 of 2003)<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tChallenge in this appeal is to the legality of order passed
\nby a learned Single Judge of the Patna High Court rejecting
\nthe petition filed by the appellants in terms of Section 482 of
\nthe Code of Criminal Procedure, 1973 (in short the ‘Code’).\n<\/p>\n
\tFactual position in essence is as follows:\n<\/p>\n
\tOn the written report of informant Dhrup Narain Dubey,
\nfather of respondents 2 and 3 case for alleged commission of
\noffences punishable under Sections 341, 323 and 435 read
\nwith Section 34 of the Indian Penal Code, 1860 (in short the
\n‘IPC’) was registered vide Raghunath Pur P.S. case No.7\/99
\ndated 20.8.1999. It was alleged that accused persons named
\nin the FIR assaulted the informant and others. However, the
\npolice after investigation submitted charge sheet wherein three
\nof the ladies accused were found to be not involved in the case.
\nThe police submitted charge sheet only against Harendra
\nDubey and Sheo Kumar Dubey. The charge sheet was placed
\nbefore the learned Chief Judicial Magistrate (in short the
\n‘CJM’) who by his order dated 15.2.1999 took cognizance of
\nthe offence and directed issuance of processes against accused
\nSheo Kumar Dubey, Harendra Dubey, and appellants Minu
\nKumari and Runjhun Kumari on the ground that there is a
\nprima facie case against them for the offences punishable u\/s
\n341, 323 and 435 read with Section 34 IPC. The learned CJM
\nalso ordered for issuance of summons and made over the case
\nto the court of Judicial Magistrate, 1st Class for favour of
\ndisposal.\n<\/p>\n
\tHowever, on behalf of appellants Minu Kumari and
\nRunjhun Kumari a petition was filed before the Court of
\nlearned CJM praying therein that due to clerical error the
\nnames of the appellants have also been mentioned in the order
\ndated 15.2.1999 and cognizance was also taken and issuance
\nof summons was also ordered so far as they are concerned.
\nThe learned CJM on the above petition got a miscellaneous
\ncase No.37\/99 registered and by order dated 5.5.1999 he
\ncalled for the record from the court of the Magistrate, where
\nthe Trial No.795\/1999 was pending. The learned CJM heard
\nlearned counsel for the appellants and ordered to strike of
\ntheir names.\n<\/p>\n
\tThe order passed by learned CJM was assailed before
\nlearned First Additional District and Sessions Judge, Siwan
\nwho set aside the order holding that the learned CJM did not
\nhave any power, muchless inherent power to recall or review
\nhis order. With reference to Section 362 of the Code it was
\nheld that the Court is not empowered to alter the judgment
\nsave as otherwise provided by the Code or by any other law for
\nthe time being in force. It was further held that the order
\npassed by learned CJM amounted to review.  Accordingly, the
\norder passed by learned CJM was set aside.\n<\/p>\n
\tAppellants questioned correctness of the order by filing a
\npetition under Section 482 of the Code which came to be
\ndismissed on the ground that the Subordinate Court could not
\nhave recalled its own order under  Section 362 of the Code on
\nthe pretext that there was correction of clerical and
\narithmetical errors.\n<\/p>\n
\tIn support of the appeal, learned counsel for the
\nappellants submitted that approach of the High Court is
\nclearly erroneous. Even if it is conceded for the sake of
\nargument that the Subordinate Court could not have recalled
\nor review its order, on the facts of the case the High Court
\nshould have exercised power under Section 482 of the Code.
\n\tIn spite of service of notice respondents 2 and 3 have not
\nentered appearance.\n<\/p>\n
\tLearned counsel for the State of Bihar submitted that
\ntechnically the learned 1st Additional District and Sessions
\nJudge was correct. But the High Court should have exercised
\npower under Section 482 of the Code.\n<\/p>\n
In Abhinandan Jha and another v. Dinesh Mishra (AIR
\n1968 SC 117), this Court while considering the provisions of
\nSections 156(3), 169, 178 and 190 of the Code held that there
\nis no power, expressly or impliedly conferred, under the Code,
\non a Magistrate to call upon the police to submit a charge
\nsheet, when they have sent a report under Section 169 of the
\nCode, that there is no case made out for sending up an
\naccused for trial.  The functions of the Magistracy and the
\npolice are entirely different, and the Magistrate cannot impinge
\nupon the jurisdiction of the police, by compelling them to
\nchange their opinion so as to accord with his view.  However,
\nhe is not deprived of the power to proceed with the matter.
\nThere is no obligation on the Magistrate to accept the report if
\nhe does not agree with the opinion formed by the police.  The
\npower to take cognizance notwithstanding formation of the
\nopinion by the police which is the final stage in the
\ninvestigation has been provided for in Section 190(1)(c).\n<\/p>\n
When a report forwarded by the police to the Magistrate
\nunder Section 173(2)(i) is placed before him several situations
\narise. The report may conclude that an offence appears to have
\nbeen committed by a particular person or persons and in such
\na case, the Magistrate may either (1) accept the report and
\ntake cognizance of the offence and issue process, or (2) may
\ndisagree with the report and drop the proceeding, or (3) may
\ndirect further investigation under Section 156(3) and require
\nthe police to make a further report.  The report may on the
\nother hand state that according to the police, no offence
\nappears to have been committed. When such a report is placed
\nbefore the Magistrate he has again option of adopting one of
\nthe three courses open i.e., (1) he may accept the report and
\ndrop the proceeding; or (2) he may disagree with the report
\nand take the view that there is sufficient ground for further
\nproceeding, take congnizance of the offence and issue process;
\nor (3) he may direct further investigation to be made by the
\npolice under Section 156(3). The position is, therefore, now
\nwell-settled that upon receipt of a police report under Section
\n173(2) a Magistrate is entitled to take cognizance of an offence
\nunder Section 190(1)(b) of the Code even if the police report is
\nto the effect that no case is made out against the accused.
\nThe Magistrate can take into account the statements of the
\nwitnesses examined by the police during the investigation and
\ntake cognizance of the offence complained of and order the
\nissue of process to the accused. Section 190(1)(b) does not lay
\ndown that a Magistrate can take cognizance of an offence only
\nif the Investigating Officer gives an opinion that the
\ninvestigation has made out a case against the accused.  The
\nMagistrate can ignore the conclusion arrived at by the
\nInvestigating officer and independently apply his mind to the
\nfacts emerging from the investigation and take cognizance of
\nthe case, if he thinks fit, exercise of his powers under Section
\n190(1)(b) and direct the issue of process to the accused. The
\nMagistrate is not bound in such a situation to follow the
\nprocedure laid down in Sections 200 and 202 of the Code for
\ntaking cognizance of a case under Section 190(1)(a) though it
\nis open to him to act under Section 200 or Section 202 also.
\n[See M\/s. India Carat Pvt. Ltd. v. State of Karnataka and<\/a>
\nanother (AIR 1989 SC 885)].\n<\/p>\n
The informant is not prejudicially affected when the
\nMagistrate decides to take cognizance and to proceed with the
\ncase.  But where the Magistrate decides that sufficient ground
\ndoes not subsist for proceeding further and drops the
\nproceeding or takes the view that there is material for
\nproceeding against some and there are insufficient grounds in
\nrespect of others, the informant would certainly be prejudiced
\nas the First Information Report lodged becomes wholly or
\npartially ineffective. This Court in Bhagwant Singh v. Commnr.
\nof Police<\/a> (1985 (2) SCC 537) held that where the Magistrate
\ndecides not to take cognizance and to drop the proceeding or
\ntakes a view that there is no sufficient ground for proceeding
\nagainst some of the persons mentioned in the First
\nInformation Report, notice to the informant and grant of
\nopportunity of being heard in the matter becomes mandatory.
\nAs indicated above, there is no provision in the Code for issue
\nof a notice in that regard.\n<\/p>\n
We may add here that the expressions ‘charge-sheet’ or
\n‘final report’ are not used in the Code, but it is understood in
\nPolice Manuals of several States containing the Rules and the
\nRegulations to be a report by the police filed under Section
\n170 of the Code, described as a “charge-sheet”.  In case of
\nreports sent under Section 169, i.e., where there is no
\nsufficiency of evidence to justify forwarding of a case to a
\nMagistrate, it is termed variously i.e., referred charge, final
\nreport or summary. Section 173 in terms does not refer to any
\nnotice to be given to raise any protest to the report submitted
\nby the police.  Though the notice issued under some of the
\nPolice Manuals states it to be a notice under Section 173 of
\nthe Code, though there is nothing in Section 173 specifically
\nproviding for such a notice.\n<\/p>\n
As decided by this Court in Bhagwant Singh’s case
\n(supra), the Magistrate has to give the notice to the informant
\nand provide an opportunity to be heard at the time of
\nconsideration of the report.  It was noted as follows:-\n<\/p>\n
“….the Magistrate must give notice to the
\ninformant and provide him an opportunity to be
\nheard at the time of consideration of the report…”\n<\/p>\n
Therefore, the stress is on the issue of notice by the
\nMagistrate at the time of consideration of the report.  If the
\ninformant is not aware as to when the matter is to be
\nconsidered, obviously, he cannot be faulted, even if protest
\npetition in reply to the notice issued by the police has been
\nfiled belatedly. But as indicated in Bhagwant Singh’s case
\n(supra) the right is conferred on the informant and none else.\n<\/p>\n
When the information is laid with the Police, but no
\naction in that behalf is taken, the complainant is given power
\nunder Section 190 read with Section 200 of the Code to lay the
\ncomplaint before the Magistrate having jurisdiction to take
\ncognizance of the offence and the Magistrate is required to
\nenquire into the complaint as provided in Chapter XV of the
\nCode. In case the Magistrate after recording evidence finds a
\nprima facie case, instead of issuing process to the accused, he
\nis empowered to direct the police concerned to investigate into
\noffence under Chapter XII of the Code and to submit a report.
\nIf he finds that the complaint does not disclose any offence to
\ntake further action, he is empowered to dismiss the complaint
\nunder Section 203 of the Code.  In case he finds that the
\ncomplaint\/evidence recorded prima facie discloses an offence,
\nhe is empowered to take cognizance of the offence and would
\nissue process to the accused.  These aspects have been
\nhighlighted by this Court in All India Institute of Medical
\nSciences Employees’ Union (Reg.) through its President v.
\nUnion of India and others (1996 (11) SCC 582). It was
\nspecifically observed that a writ petition in such cases is not to
\nbe entertained.\n<\/p>\n
The above position was highlighted in Gangadhar
\nJanardan Mhatre v. State of Maharashtra and Ors.<\/a> (2004 (7)
\nSC 768).\n<\/p>\n
Section 362 of the Code, as noted above, permits
\ncorrectness of clerical or arithmetical errors.  There is no
\nquarrel with that proposition. But the High Court seems to
\nhave completely lost sight of the scope and ambit of Section
\n482 of the Code.\n<\/p>\n
The Section does not confer any new power on the High
\nCourt. It only saves the inherent power which the Court
\npossessed before the enactment of the Code. It envisages three
\ncircumstances under which the inherent jurisdiction may be
\nexercised, namely, (i) to give effect to an order under the Code,\n<\/p>\n
(ii) to prevent abuse of the process of court, and (iii) to
\notherwise secure the ends of justice. It is neither possible nor
\ndesirable to lay down any inflexible rule which would govern
\nthe exercise of inherent jurisdiction. No legislative enactment
\ndealing with procedure can provide for all cases that may
\npossibly arise. Courts, therefore, have inherent powers apart
\nfrom express provisions of law which are necessary for proper
\ndischarge of functions and duties imposed upon them by law.
\nThat is the doctrine which finds expression in the section
\nwhich merely recognizes and preserves inherent powers of the
\nHigh Courts. All courts, whether civil or criminal possess, in
\nthe absence of any express provision, as inherent in their
\nconstitution, all such powers as are necessary to do the right
\nand to undo a wrong in course of administration of justice on
\nthe principle “quando lex aliquid alicui concedit, concedere
\nvidetur et id sine quo res ipsae esse non potest” (when the law
\ngives a person anything it gives him that without which it
\ncannot exist). While exercising powers under the section, the
\ncourt does not function as a court of appeal or revision.
\nInherent jurisdiction under the section though wide has to be
\nexercised sparingly, carefully and with caution and only when
\nsuch exercise is justified by the tests specifically laid down in
\nthe section itself. It is to be exercised ex debito justitiae to do
\nreal and substantial justice for the administration of which
\nalone courts exist. Authority of the court exists for
\nadvancement of justice and if any attempt is made to abuse
\nthat authority so as to produce injustice, the court has power
\nto prevent abuse. It would be an abuse of process of the court
\nto allow any action which would result in injustice and prevent
\npromotion of justice. In exercise of the powers court would be
\njustified to quash any proceeding if it finds that
\ninitiation\/continuance of it amounts to abuse of the process of
\ncourt or quashing of these proceedings would otherwise serve
\nthe ends of justice.\n<\/p>\n
As noted above, the powers possessed by the High Court
\nunder Section 482 of the Code are very wide and the very
\nplenitude of the power requires great caution in its exercise.
\nCourt must be careful to see that its decision in exercise of
\nthis power is based on sound principles. The inherent power
\nshould not be exercised to stifle a legitimate prosecution. The
\nHigh Court being the highest court of a State should normally
\nrefrain from giving a prima facie decision in a case where the
\nentire facts are incomplete and hazy, more so when the
\nevidence has not been collected and produced before the Court
\nand the issues involved, whether factual or legal, are of
\nmagnitude and cannot be seen in their true perspective
\nwithout sufficient material. Of course, no hard-and-fast rule
\ncan be laid down in regard to cases in which the High Court
\nwill exercise its extraordinary jurisdiction of quashing the
\nproceeding at any stage. (See: Janata Dal v. H. S. Chowdhary<\/a>
\n(1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar
\n(AIR 1964 SC 1).\n<\/p>\n
When the factual scenario is considered in the
\nbackground of legal principle set out above, the inevitable
\nconclusion is that the High Court was not justified in rejecting
\nthe application in terms of Section 482 of the Code. This is a
\ncase when the cognizance was taken,  summons were issued
\nby mistake and the names of the appellants were also
\nmentioned in the order dated 15.2.1999. Since the police have
\nnot found any material against the appellants, the learned
\nCJM without following the procedure as indicated above could
\nnot have directed issuance of summons so far as they are
\nconcerned.  There was no indication that learned CJM dis-
\nagreed with the opinion of the investigating agency and
\ntherefore ordered issuance of summons. On the contrary, as
\nnoted by learned CJM later that was a mistake and, therefore,
\nhe had ordered to strike of the names of the appellants. The
\nHigh Court’s order is set aside. The names of the appellants
\nshall be struck of from the array of accused persons.\n<\/p>\n
The appeal is allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Minu Kumari And Anr vs The State Of Bihar And Ors on 12 April, 2006 Author: A Pasayat Bench: Arijit Pasayat, S.H. Kapadia CASE NO.: Appeal (crl.) 420 of 2006 PETITIONER: Minu Kumari and Anr. RESPONDENT: The State of Bihar and Ors. DATE OF JUDGMENT: 12\/04\/2006 BENCH: ARIJIT PASAYAT & S.H. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-208918","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMinu Kumari And Anr vs The State Of Bihar And Ors on 12 April, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/minu-kumari-and-anr-vs-the-state-of-bihar-and-ors-on-12-april-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Minu Kumari And Anr vs The State Of Bihar And Ors on 12 April, 2006 - 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