Pawan Kumar Yadav vs State of Bihar and Others

B.N.P. Singh, J.—The matter is of academic interest and has become debatable in view of divergent judicial precedents of the Court.

Factual matrix - Salkhua P.S. Case No. 13 of 1998 was registered u/s 302 and other allied sections of the Indian Penal Code (IPC) at the behest of Pawan Kumar Yadav. With accusations that while the deceased was returing after casting vote in a booth situated in a Project Girls'' High School, Salkhua, he was intercepted by a number of persons including Ranjit Kumar Yadav, Kailash Yadav, Bishundeo Yadav, Sanjay Yadav, Biro Yadav, Tapesh Kumar Yadav, Ravindra Yadav, Bhavesh Kumar Yadav, Arvind Yadav, Mukesh Yadav and Kamleshwari Yadav, who assaulted him and when his brother came for his rescue, he too suffered assault, pursuant to which Ranjit Kumar Yadav shot dead Ram Pravesh Yadav. After the Police was set in motion, investigation commenced and during investigation, Police recorded statements of a number of witnesses, including father of the deceased, other family members and other witnesses, and while it recommended trial of Ranjit Kumar Yadav, who was absconding, the rest 10 persons were not sent up for trial.

The Chief Judicial Magistrate, Saharsa, on submission of the Police report u/s 173(2) of the Code of Criminal Procedure (hereinafter to be referred to as ''the Code''), and on examination of the statement of the witnesses recorded by the Police during investigation and other materials on record and also following the judicial precedents, directed issuance of summons also against the rest 10 accused persons, who were not sent up for trial by the Police. The aggrieved persons, sought to be put on trial by the order of the Chief Judicial Magistrate, preferred two Criminal Revisions bearing Cr. Rev. Nos. 150 and 151 of 1999 and challenged the findings recorded by the Chief Judicial Magistrate. It seems that the Additional Sessions Judge, Saharsa, who was in seisin of the proceeding, following the decision of the Apex Court of the land, took a view that the Chief Judicial Magistrate was not empowered to take cognizance of the offences, which were triable by the Court of Session, when the Police had not recommended the case for trial when such powers were implicit u/s 190(1)(b) of the Code, and on these premises both the revision applications were allowed impliedly negativing the findings recorded by the Chief Judicial Magistrate, directing issuance of summons also against ten accused persons. Now, in their turn, the aggrieved informant has sought to invoke the jurisdiction of the Court in this criminal revision and it is sought to be urged at Bar on behalf of the Petitioner that on appreciation of construction of Section 190(1)(b) of the Code, in which it is couched, the finding recorded by the Additional Sessions Judge was in violation of the principles laid down in the Code in regard to jurisdiction of taking cognizance of the offence triable by the Court of Session. Contentions are raised at Bar that the Judicial precedent right from case of Abhinandan Jha and Others Vs. Dinesh Mishra, had laid down a golden principle that notwithstanding submission of final report by the Police u/s 173(2) of the Code, not recommending some of the accused to be put on trial, the Magistrate, who has the ultimate control over the investigation, was still within the jurisdiction and domain to negative the findings recorded by the Investigating Officer and take a contrary view of the matter to put the accused on trial and for issuance of summons against them.

The accused persons sought to be put on trial by the order of the Chief Judicial Magistrate, were also impleaded as opposite party, and the learned Counsel appearing for them were also heard at length. Contention raised at Bar on their behalf was that the finding recorded by the Additional Sessions Judge, Saharsa was based on sound principle in the matter of taking cognizance who have not been sent up for trial by the Police, as unless additional evidence was placed on record impliedly u/s 319 of the Code, there was no good occasion for the Magistrate to reach to a definite conclusion other than recorded by the Police and reliance on this score was sought to be placed on a decision of the Apex Court of the land reported in the case of Kishori Singh and Ors. v. State of Bihar and Anr. [2001(1) All PLR 72]. It is sought to be urged that apart from this, even the order of the Chief Judicial Magistrate did not appear to have been based on the materials collected during investigation by the Police.

On appreciation of construction of on 190(1)(b) of the Code, and regard had to the language, in which it is (sic)ed, it is manifest that on submission (sic) report u/s 173(2) of the for consideration of issuance of sum(sic) the Magistrate is required to take consideration, the first information re(sic) and the statements recorded by the and also other documents tendered with the charge sheet, and profitably, quote the observations and also the decidendi of the Apex Court of the recently reported in the case of SWIL Ltd. v. State of Delhi and Anr. AIR 2001 S.C. 2747: 2001 (4) PLJR (SC) 163 in which principle laid down by the (sic) Court of the land was that on receipt (sic) Police report u/s 173(2) (sic) of Code, the Magistrate was entitled to (sic) cognizance for offence u/s (1)(b) of the Code even after the Police (sic)t is to the effect that no case was the out against the accused, by ignoring conclusion arrived at by the Investigation Officer and independently applying his (sic) to the facts emerging from the investigation by taking into account the state-(sic) of the witnesses examined by the (sic)e. The observations were made, that his stage there was no application of Section 319 of the Code, as that provision (sic) come into operation in the course of inquiry into or trial of an offence. The conclusion that emerges from the observation laid down by the Apex Court of the was that while exercising jurisdiction u/s 190(1)(b) of the Code, the magistrate was still within the jurisdiction had domain to take into consideration materials collected during investigation withstanding the Police not recommended the accused to be put on trial.

5A. Such jurisdiction vested in the Magistrate postulates basic concept that it to the Magistrate, who has ultimate control the investigation. The jurisdiction to decide as to who should be put on trial is ultimately that of the Magistrate and not the Police, and to conclude, the last say, in the matter for putting the control is that of the Magistrate alone.

This fact cannot be lost sight of that for appreciation of the issue raised at Bar on behalf of both the sides, a number of witnesses including Naresh Yadav, Sheo Shankar Yadav, Ashok Kumar Yadav, Sanichari Devi, Rajendra Yadav too in their statement, rendered before the Police, has disclosed the complicity of even those, who were not recommended by the Police to be put on trial and that apart, during pendency of investigation statements of Rajendra Yadav, Ram Chariter Yadav and Uttim Lal Yadav were recorded by the Magistrate u/s 164 of the Code and in these statements too complicity of ten persons had transpired along with Ranjit Kumar Yadav. This fact too cannot be lost sight of that shortly on conclusion of investigation, the aggrieved informant put a protest petition before the Court about Investigating Officer not honestly recording the statement of the witnesses and on these premises, the matter which has become debatable due to two divergent judicial precedents by the Court, I prefer to follow the recent decision of the Apex Court reported in the case of M/s SWIL Ltd. v. State of Delhi and Anr. AIR 2001 SC 2747 (supra) and the revision petition is accordingly allowed, as a consequence of which while finding recorded by the Additional Sessions Judge is set aside, the order, that of the Chief Judicial Magistrate is restored.