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PATNA HIGH COURT
Ramratna Singh and S.P.Singh JJ.
Raghubansh Dubey
Versus
State Of Bihar
Criminal Revision No. 896 of 1961 ;
Decided On : APRIL 10, 1964
CRIMINAL PROCEDURE CODE - SECTION 207 - SUMMONING OF ACCUSED - PROCEDURE - DISTINCTION BETWEEN ENQUIRY IN RESPECT OF POLICE REPORT AND ENQUIRY IN RESPECT OF COMPLAINT CASES - MAGISTRATE TO WHOM CASE IS TRANSFERRED UNDER SECTION 192 HAS POWER TO SUMMON ANY PERSON AS ACCUSED, ALTHOUGH HE MAY NOT HAVE BEEN SUMMONED BY THE TRANSFEROR MAGISTRATE.
Fact of the Case:
The petitioner, Raghubansh Dubey, was not sent up for trial by the police in a case involving offences under Sections 149, 302, and 201 of the Indian Penal Code. However, the transferee Magistrate, Mr. L. P. Singh, summoned Raghubansh Dubey as an accused after considering the evidence of two prosecution witnesses examined in court and the evidence of five witnesses before the Police.
Finding of the Court:
The court held that the impugned order of Mr. L. P. Singh summoning Raghubansh Dubey was not illegal or irregular, as the Magistrate had the power to summon any person as an accused, although he may not have been summoned by the transferor Magistrate.
Issues: 1. Whether the impugned order of Mr. L. P. Singh summoning Raghubansh Dubey was illegal or irregular. 2. Whether the Magistrate had the power to summon any person as an accused, although he may not have been summoned by the transferor Magistrate.
Ratio Decidendi: 1. The court held that the impugned order of Mr. L. P. Singh summoning Raghubansh Dubey was not illegal or irregular, as the Magistrate had the power to summon any person as an accused, although he may not have been summoned by the transferor Magistrate. 2. The court relied on the provisions of Section 192 of the Code of Criminal Procedure, which empowers a Magistrate to whom a case is transferred to summon any person as an accused, although he may not have been summoned by the transferor Magistrate.
Final Decision: The court dismissed the application in revision.
Ramratna Singh, J.
1. The facts giving rise to this application in revision are these. One Raja Ram Sao lodged a first information report on the 29th of July, 1959 against fifteen persons including the petitioner Raghubansh Dubey. In due course, the police submitted final form under Sec.173 of the Code of Criminal Procedure; and the Police recommended that, except Raghubansh Dubey, the other persons named as accused in the first information report should be tried. In other words, Raghubansh Dubey was not sent up by the police for triar. On the 5th April, 1961, the Sub-divisional Magistrate passed the following order :-
"C. S. No. 12 dated 23-3-61 under Sec.149 /302/ 201, I. P. C. received against the accused noted in Col. 3 and 4 of C. S. Cog. taken under Sec.149/302/201, I. P. C. and case transferred to Sri L. P. Singh, Magistrate 1st Class for enquiry under Chapter XVIII Cr. P. C. Accused not sent up for trial is discharged."
Except the name of Sri L. P. Singh and the initial of the Subdivisional Magistrate, the entire order is in the writing of the Bench clerk of the Magistrate.
The transferee Magistrate, i.e. Mr. L. P. Singh took up the hearing of the case on the 2nd May 1961. On that day, after a prosecution witness had been examined in chief, the lawyer" for Raja Ram Sao requested the Magistrate to summon Raghubansh Dubey as well for trial, as prayed for in the informants petition dated 11-4-61, because Raghubansh Dubey had been named in the first information report as well as in the examination in chief of P. W. 1. After hearing the Assistant District Prosecutor as well as the lawyer for the informant and the accused before him, Mr. Singh passed the following order: "Raghubans is named in F. I. R. and as submitted by A. D. P. 5 witnesses have named him before Police and P. W. 1 examined before me has also named him. So in my opinion it is proper to add Raghubans Dubey also in this enquiry as accused. At this stage one petition has been filed by lawyer of accused that cross-examination of P. Ws. be allowed to be done after appearance of Raghubans. This contention is quite reasonable otherwise cross-examination will have to be done again after appearance of Raghubans and so prayer of defence is allowed. Examined P. W. 2 also in chief. He has also named Raghubans to be a member of the mob of these accused at the time of occirrrence. So issue non-bailable W/A against Raghubans Dubey according to address given by P. W. Mahesh Sah today as the allegation against Raghubans appears to be very serious one. Send the process by special peon returnable by 3-5-61, Other accused will re-attend".
In the petition dated 11-4-61 filed before this Magistrate, Raja Ram Sao had requested the Magistrate to summon Raghubans Dubey. At that time he did not pass any order, but he, summoned Raghubansh Dubey after considering the evidence of the two prosecution witnesses and the evidence of five witnesses before the Police. It is against the order dated the 2nd May 1961, summoning Raghubansh Dubey, that this application in revision has been filed.
2. Mr. Baldeo Prasad Singh raised two points challenging this order. He submitted that the petition dated 11-4-61 amounted to a protest petition, and therefore, it is a petition of complaint. Summoning Raghubansh Dubey on the basis of a petition of complaint would result in a separate complaint case, and if Raghubansh Dubey is tried along with the other accused persons under Section 207-A of the Code of Criminal Procedure, he would be at a disadvantage, because the provisions contained in Chapter XVIII of the Code relating to complaint cases are more advantageous to the accused, particularly because he has the opportunity to cross examine the prosecution witnesses before the charge is framed. Learned counsel cited the decision of the Supreme Court in Hanumantha Rao V/s. State of Andhra Pradesh, (S) AIR 1957 SC 927 to show the important distinctions between an enquiry in respect of Police report a
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