Mohan Das Agrawal vs The State of Bihar and Others

B.N. Agrawal, J.—This application has been filed for quashing only that portion of the dated 24.8.1985 by which the learned Chief Judicial Magistrate has directed the complainant to clarify to court regarding plea of alibi disclosed by the accused before the police.

It appears that a First Information Report was lodged at the police station and the police after registering the case took up investigation and on completion thereof submitted final form in the shape of final report in favour of the accused persons whereupon a protest petition in the nature of a complaint was filed and the learned Magistrate after examining the complainant on solemn affirmation took up the matter for enquiry u/s 202 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) during the course of which several witnesses have been examined. Thereafter the learned Magistrate by the impugned order has accepted the final report submitted by the police and since after looking into report of the police which includes case he was of the view, that the accused had taken 18 plea of alibi before the police, the complainant should satisfy the court that the plea of alibi set up by accused before the police was false one.

In my view, the procedure adopted by the learned Magistrate is novel one and wholly Unknown to law. It is well settled that at the stage of cognizance what the learned Magistrate is required to do is to consider whether there are sufficient grounds for proceeding and not whether the defence of accused taken before the police in connection with the police case is true or false. Accused has no locus standi at the stage of cognizance. He can be a silent spectator only. However, argument on behalf of the accused, showing that on the very face of the petition of complaint, solemn affirmation and the evidence adduced during the course of enquiry u/s 202 of the Code, either no offence is disclosed or prosecution is barred under BUY law for the time being in force may be permitted. He cannot be allowed to put forth any defence nor he can be allowed to lead any evidence in support of the defence. If a Magistrate is debarred from allowing the accused persons to disclose and prove his defence at the stage of cognizance, I really fail to under stand as to how the learned Magistrate can load the dice against the complainant by directing him to disprove the plea of alibi taken by the accused before the police, In my view, such a direction in the impugned order shows complete ignorance of basic concept of criminal jurisprudence of the learned Magistrate who has been vested with the powers, of the Chief Judicial Magistrate by this Court. For the fore-going reasons, I have no option but to quash the Impugned order.

In the result this application is allowed and that portion of the impugned order by which the learned Magistrate has directed the complainant to disprove the plea of alibi of accused taken before the police is set aside, Now upon receipt of the records from Courts the learned Magistrate will apply his mind to the protest petition in the nature of a complaint, solemn affirmation and the result of enquiry u/s 202 of the Code and pass appropriate orders thereupon in accordance with law without being prejudged by the fact that final report of the police submitted in favour of the accused has been accepted by impugned order. This application is accordingly disposed of.