Balram Yadav vs State of Bihar

Navin Sinha, J.—Heard learned Counsel for the Petitioner and learned Counsel for the State.

Learned Counsel for the Petitioner submits that Raghopur PS Case No. 58/2002 was lodged under Sections 364 and 120B read with Section 34 of the Indian Penal Code. The original FIR named two accused persons along with five-six unknown persons. The Petitioner was not one of the named accused. After investigation, a charge sheet was submitted. The Petitioner was not named therein. Cognizance was then taken on 2.8.2002. Subsequently, a supplementary chargesheet was submitted wherein the Petitioner was also sent up for trial. The learned court below by order dated 24.10.2002 again took cognizance and issued summons to the Petitioner.

Learned Counsel for the Petitioner thus contended that cognizance is taken for an offence. The Court would not have taken cognizance twice for the same offence. Secondly, he submits that the case was triable by sessions and since the Petitioner was not named in the FIR and no chargesheet had been submitted against him at the stage of cognizance, the Petitioner could have been summoned by the sessions court in accordance with other provisions of the Code of Criminal Procedure. The Magistrate could have summoned the Petitioner at the stage of cognizance he would have otherwise found materials against him, he lastly submits that the supplementary chargesheet was bad since there was no fresh material discovered/during investigation. The supplementary chargesheet was the result of only fresh assessment of the materials already on record. This, he submits was impermissible in law. Learned Counsel placed reliance for his propositions on two judgments of this Court reported in Yamuna Pathak Vs. The State of Bihar and Another, .

The learned Counsel for the State submitted that there is no irregularity in the order and the same requires no interference.

Having considered the rival submissions, this Court accepts the contentions on behalf of the Petitioner. Cognizance of the offence, having already been taken earlier, there was no occasion for the Court to take cognizance of the offence afresh. The order dated 24.10.2002 thus stands vitiated and is liable to be set aside. Since the case was triable by sessions, the learned Magistrate was not competent to take cognizance in the manner it has been done. The order is bad on that count also. This application is therefore allowed.

This would however not mean that the Petitioner would go out of the clutches of the law. Notwithstanding this order and that the order dated 24.10.2002 has been set aside, the Sessions Court to which the case be committed would be at complete liberty to proceed against the Petitioner in accordance with other provisions of the Code of Criminal Procedure dealing with persons situated as the Petitioner in the present prosecution. It is clarified that the committal court would retain its entire discretion to deal with the Petitioner as it thinks appropriate in accordance with the provisions of the Code.