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Judgment
Heard Mr. Dhanajay Kumar, learned counsel for the
petitioner, Mr. Jharkhandi Upadhyay, learned Additional Public
Prosecutor for the State and Mr. Sunil Kumar, learned counsel for
the informant/opposite party no. 2.
This application under Section 482 of the Code
of Criminal Procedure (for short '' Cr.P.C .'') has been filed for
quashing the order dated 05.03.2013 passed by the learned Chief
Judicial Magistrate, Samastipur in Misc. Case No. 5 of 2013,
arising out of Patori P. S. Case No. 14 of 2012, corresponding to
G.R. No. 165 of 2012 whereby the learned Chief Judicial
Magistrate has withdrawn Patori Case No. 14 of 2012 from Gram
Katchahry after cancelling its jurisdiction and has reviewed his
earlier order of cognizance.
The aforementioned Patori P. S. Case No. 14 of
2012 was registered on the basis of the written report submitted by
opposite party no. 2 Arvind Singh on 21.01.2012. In the written
report, it was alleged that when the informant reached his house on
20.01.2012 at 7 p.m., he saw that the petitioner and other accused
persons were abusing his mother and calling her to be a daain.
When the informant protested, they assaulted him by fist. He has
further alleged that one Mannu Singh picked up his mobile and one
Mithilesh Singh took away Rs.1400/- from his pocket. He has
stated that on alarm, Ajit Singh and Hem Narayan Singh reached
there and saw the incident. He has stated that he was taken to
Primary Health Centre, Mohanpur for treatment. It is alleged that
the accused persons threatened the informant/opposite party no. 2
and his mother in various ways. On the basis of the aforementioned
written report of the informant, the first information report (for
short ''FIR'') was registered under Sections 341, 323, 504 and
506 / 34 of the Indian Penal Code (for short '' IPC '').
The police investigated the case and on
completion of investigation submitted its report under Section
173(2) of the Cr.P.C. in the court of Chief Judicial Magistrate.
After taking into consideration the materials
available on record, including the report of the police submitted
under Section 173(2) of the Cr.P.C., the learned Chief Judicial
Magistrate took cognizance of the offence under Sections 341, 323,
504 and 506 / 34 of the IPC against the accused persons, vide order
dated 13.02.2012.
Since the offences under which cognizance was
taken were triable by a bench of gram katchahry, the learned Chief
Judicial Magistrate, vide aforementioned order dated 13.02.2012
passed in Patori P.S. Case No. 14 of 2012, transferred the case to
the Gram Panchayat, West Dhanipatti for trial and its disposal.
After the aforementioned order dated
13.02.2012 was passed by the learned Chief Judicial Magistrate, the
informant filed an application before the learned Chief Judicial
Magistrate, Samastipur, which was registered as Misc. Case No.5
of 2013 stating therein that after submission of charge-sheet in
Patori P. S. Case No. 14 of 2012, he had made an application to the
DIG of Police, Darbhanga for further investigation of the case and
on his application, the matter was further investigated in which the
allegations under Section 379 of the IPC and Section 3 and 4 of the
Prevention of Witch (Daain) Practice Act, 1999 were found true.
The informant prayed in the aforesaid Misc. Case that the order
dated 13.02.2012 passed in Patori P. S. Case No. 14 of 2012 be
recalled and after quashing the jurisdiction of the Gram Panchayat,
cognizance be taken inter alia under Section 379 of the IPC and
Sections 3 and 4 of the Prevention of Witch (Daain) Practice Act,
1999.
It would be evident from the record of aforesaid
Misc. that at the instance of the informant, on 05.03.2013, the
learned Chief Judicial Magistrate cancelled the jurisdiction of the
Gram Panchayat in Patori P. S. Case No. 14 of 2012 and on the
basis of the copy of the report as contained in Memo No. 13228
issued by the Superintendent of Police, Samastipur, which was sent
to the investigating officer of the case took cognizance of the
offence under Sections 341, 323, 379, 504 and 506 / 34 of the IPC
and Section 3 and 4 of the Prevention of Witch (Daain) Practice
Act, 1999 and transferred the case to the court of Judicial
Magistrate. After having recorded the aforementioned order dated
05.03.2013 in Misc. Case No. 5 of 2013, the learned Chief Judicial
Magistrate once again passed the same order, as passed in Misc.
Case No. 5 of 2013 on 05.03.2013, in Patori P. S. Case No. 14 of
2012 on 21.03.2013.
Mr. Dhananjay Kumar, learned counsel for the
petitioner has submitted that the very registration of Misc. Case No.
5 of 2013 in Patori P. S. Case No. 14 of 2012 was beyond the
scheme of the Cr.P.C . and was an abuse of the process of law. He
submitted that after institution of the case the police had already
investigated the case and submitted its report. There was no further
investigation in the matter and only because an application was
filed by the informant annexing a copy of communication made by
the Superintendent of Police to the investigating officer of the case,
the same could not have been treated as a further report in terms of
Section 173(8) of the Cr.P.C. He submitted that in the present case,
no further investigation was conducted and no information in this
regard was ever made to the court. He submitted that though the
Chief Judicial Magistrate was well within his jurisdiction to cancel
the jurisdiction of the Gram Katchahry as also to cancel and
withdraw the case from the jurisdiction of the Gram Panchayat, the
manner in which the learned Magistrate has passed the order cannot
be justified. He submitted that the subsequent order by which the
learned Magistrate has taken cognizance of the offence inter alia
under Section 379 of the IPC and Section 3 and 4 of the Prevention
of Witch (Daain) Practice Act, 1999 is clearly hit by the provision
prescribed under Section 362 of the Cr.P.C.
On the other hand, Mr. Sunil Kumar, learned
counsel for the informant submitted that since a collusive report
was submitted by the police after investigation, the informant
approached the DIG of Police by way of filing a representation and
on the representation of the informant, the police inquired into the
matter and the Superintendent of Police had passed an order which
was brought to the notice of the court pursuant to which the learned
Chief Judicial Magistrate recalled his earlier order and cancelled
the jurisdiction of the Gram Panchayat in order to proceed with the
case himself. He submitted that the power to withdraw a case from
Gram Katchahry is conferred upon the court under Section 115 of
Bihar Panchayat Raj Act, 2006 and, thus, it cannot be said that the
order passed by the learned Chief Judicial Magistrate was in any
manner hit by Section 362 of the Cr.P.C. He submitted that the
court of Magistrate has got power to amend charge at any stage
during the ongoing criminal proceeding. Hence, the amendment
made in the order taking cognizance is of no consequence.
Mr. Jharkhandi Upadhyay, learned Additional
Public Prosecutor for the State has adopted the submissions made
by the learned counsel for the informant. In addition to what has
been argued by the learned counsel for the informant, he has
submitted that simply because the subsequent order of the
Superintendent of Police was not in the form of a police report
under Section 173(8) of the Cr.P.C., the same cannot be termed as a
simple order. He submitted that memo issued by the Superintendent
of Police clearly stated that the penal offence under Section 379 of
the IPC and Section 3 and 4 of the Prevention of Witch (Daain)
Practice Act, 1999 were also made out. He contended that looking
at the opinion of the Superintendent of Police, if the learned Chief
Judicial Magistrate has recalled his earlier order and withdrew the
case from Gram Panchayat, no illegality can be found with the
order.
I have heard learned counsel for the parties and
perused the record.
From the pleading of the parties, it would be
evident that there is no dispute to the fact that the police report
submitted under Section 173(2) of the Cr.P.C. was only for the
penal offences under the IPC, which were triable by a Gram
Katchahry. It is also not in dispute that in terms of the provisions
prescribed under Section 114 of the Bihar Panchayat Raj Act, 2006,
the learned Chief Judicial Magistrate was legally competent to
transfer the case to the Gram Katchahry after taking cognizance of
the offence. Thus, there was no illegality in the order of the Chief
Judicial Magistrate dated 13.02.2012 whereby he had transferred
Patori P. S. Case No. 14 of 2012 to the Gram Panchayat.
It is true that Section 115 of Bihar Panchayat
Raj Act, 2006 confers jurisdiction upon the Chief Judicial
Magistrate to withdraw any case pending before the bench of Gram
Katchahry. If the Chief Judicial Magistrate is of the opinion that
such case ought not to be tried or heard by such bench, for the
reasons to be recorded in writing, he may try the case either himself
or transfer it to another Magistrate either on his own motion or on
information received from any other source. However, the manner
in which the learned Chief Judicial Magistrate has passed the order
of withdrawal of the case from the bench of Gram Katchahry
cannot be countenanced.
Learned counsel for the petitioner is right in his
submission that filing of Misc. Case No. 5 of 2013 in Patori P. S.
Case No. 14 of 2012 was beyond the scheme of Cr.P.C . The role of
an informant is well defined in a criminal case initiated on the basis
of the FIR. The informant may assist the prosecutor or incharge of
the case in a criminal case initiated on the basis of FIR. His role is
limited one. He may also with permission of the court submit
written argument after the evidence is closed. However, in a police
case, there is no provision to register a Misc. Case after transferring
the record of the case to Gram Panchayat and pass orders in that
Misc. Case and to further incorporate the same order in the police
case after withdrawing the case from the Gram Katchehry and
canceling the jurisdiction of Gram Panchayat.
What would appear from the record of the
present case is that the learned Chief Judicial Magistrate first
amended the provisions under which he had taken cognizance in
Patori P. S. Case No. 14 of 2012, vide order dated 05.03.2013 on
the application filed on behalf of the informant annexing a copy of
the some sort of direction issued by the Superintendent of Police
and, thereafter, he incorporated the said order in the record of
Patori P. S. Case No. 14 of 2012 on 21.03.2013. Such a practice is
unknown to law.
I also find substance in the argument of the
petitioner that in absence of any further report in terms of Section
173(8) of the Cr.P.C ., the learned Magistrate could not have
modified the order taking cognizance. In this regard, the pleading
of the informant that since the Magistrate has got jurisdiction to
make amendment in charge, even the order of cognizance can be
amended is without any substance. The power is vested in a court
to amend or alter charge at any stage prescribed under Section 216
of the Cr.P.C. refer to a stage different from the stage of taking
cognizance. There is no such power to amend order of cognizance
and add certain sections into the order of cognizance after taking
into consideration extraneous material. Of course, the Magistrate
may correct a clerical or arithmetical error in exercise of power
under Section 362 of the Cr.P.C., but in the present case the learned
Magistrate has acted upon some document filed on behalf of the
informant, which cannot be termed to be police report / charge-
sheet or further report in terms of Section 173(2) or Section 173(8)
of the Cr.P.C. for making amendment in the order taking
cognizance.
Hence, in absence of any further police report,
the subsequent order passed by the Magistrate modifying the order
of cognizance is patently bad in law.
In that view of the matter, the impugned order
dated 05.03.2013 passed in Misc. Case No. 5 of 2013 and the order
dated 21.03.2013 passed in Patori P.S. Case No. 14 of 2012 by the
learned Chief Judicial Magistrate, Samastipur cannot be sustained.
Accordingly, they are set aside. Misc. Case No. 05 of 2013 stands
quashed. Consequently, Patori P. S. Case No. 14 of 2012 stands
transferred to the Gram Katchehry.
The application stands allowed to the extent
indicated above.