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1989 Supreme(Pat) 90
PATNA HIGH COURT
B.N.Sinha, J.
Md.Rafiq
Versus
State Of Bihar
Criminal Miscellaneous No. 784 of 1989 ;
Decided On : MARCH 3, 1989
A Magistrate has the power to take cognizance of an offence based on the materials available in the case diary, even if the Police have submitted a final report.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 190(1)(B) - TAKING COGNIZANCE OF OFFENCE - MAGISTRATE'S POWER - INTERPRETATION - COURT'S ANALYSIS - SECTION 173(1) - POLICE REPORT - SUBMISSION - MAGISTRATE'S DISCRETION - SECTION 200 - COMPLAINT - EXAMINATION OF COMPLAINANT AND WITNESSES - PROCEDURE - SECTION 482 - INHERENT POWERS OF HIGH COURT - QUASHING OF PROCEEDINGS - CONDITIONS - SECTION 436 - MISCHIEF BY FIRE OR EXPLOSIVE SUBSTANCE WITH INTENT TO DESTROY HOUSE, ETC. - INTERPRETATION - SECTION 1430 - HEARING OF ACCUSED AT TIME OF TAKING COGNIZANCE - LEGALITY - SECTION 449 - REASONS FOR TAKING COGNIZANCE - MENTION IN ORDER - NECESSITY.
Fact of the Case:
Petitioners challenged the order of the Chief Judicial Magistrate (CJM) taking cognizance of a case against them under Section 436 of the Indian Penal Code (IPC) for allegedly setting fire to the house of the informant (Opposite Party No. 2). The CJM had taken cognizance based on the statements of witnesses in the case diary, despite the Police submitting a final report.
Finding of the Court:
The court held that the CJM was justified in taking cognizance of the case under Section 190(1)(b) of the Code of Criminal Procedure (CrPC) based on the materials available in the case diary. The court noted that the CJM had discussed the statements of witnesses and found sufficient ground for proceeding.
Issues: 1. Whether the CJM had the power to take cognizance of the case based on the Police report under Section 173(1) of the CrPC. 2. Whether the CJM was required to examine the informant on solemn affirmation before taking cognizance of the case. 3. Whether the CJM erred in hearing the accused petitioners at the time of taking cognizance of the case.
Ratio Decidendi: 1. The court relied on the Supreme Court decision in H.S. Bains v. The State (Union Territory of Chandigarh) to hold that a Magistrate, upon receipt of a Police report under Section 173(1) of the CrPC, has three options: (i) drop action if there is no sufficient ground for proceeding; (ii) take cognizance of the offence under Section 190(1)(b) based on the Police report and issue processes; or (iii) take cognizance of the offence under Section 190(1)(a) based on the original complaint and examine the complainant and witnesses on oath under Section 200. 2. The court held that the CJM was not required to examine the informant on solemn affirmation before taking cognizance of the case, as he had taken cognizance under Section 190(1)(b) based on the Police report. 3. The court held that the CJM did not err in hearing the accused petitioners at the time of taking cognizance of the case, as the petitioners had no locus standi to be heard at that stage.
Final Decision: The court dismissed the petitioners' application, finding no merit in their arguments.
1. Heard learned counsel for the petitioners and for the Opposite Party No. 2 and with their consent, this application is being disposed of at the admission stage itself.
2. This is an application under S.482 of the Code of Criminal Procedure (hereinafter to be referred to as the Code) with prayer quash the order dated 12-11-1989 passed the Chief Judicial Magistrate, Katihar taking cognizance of the case under S.436 of the Indian Penal Code against the accused petitioners and issuing notices against them for appearance.
3. The relevant facts for disposal of this application may be briefly stated as follows :
On 7-6-1988, the opposite party No. 2 lodged a written information at Katihar Police Station alleging that on the preceding night, the petitioners set fire to his house as a result of which his house was burnt. The Police, on receipt of written information instituted Katihar P.S. Case No. 259 of 1988 under S.436 of the Indian Penal Code, 1860. Witnesses were examined during investigation who supported the case of the first informant (O.P. No. 2) but the Police, after completing the investigation, submitted final report on 31-8-88. The informant (O.P. No. 2) had filed a protest petition against the Police while the investigation was going on. The learned Chief Judicial Magistrate, Katihar on perusal of the statements contained in the case diary did not accept the final report submitted by the Police and took cognizance of the case against these petitioners under S.436 of the Indian Penal Code directing to issue notices against them for their appearance by order dated 12-1-1989 and the present application is directed against the same.
4. The learned counsel for the petitioners has submitted that the Chief Judicial Magistrate, Katihar has illegally taken cognizance of the case and, if at all, the C.J.M. thought it to be a fit case for taking cognizance, he ought to have examined the first informant (O.P. No. 2) on S.A. on the basis of protest petition and then taken cognizance of the case, but he could not have taken cognizance of the case without that when the Police had submitted final report in the case.
5. I do not agree with the submission made by the learned counsel for the petitioners. The learned Chief Judicial Magistrate was quite justified in taking cognizance of the case on the basis of the materials available in the case diary if he was satisfied on perusal thereof that there was sufficient ground for proceeding. I am fortified in my view by the decision of the Supreme Court in H.S. Bains V/s. The State (Union Territory of Chandigarh) AIR 1980 SC 1883 : (1980 Cri LJ 1308) in which it has been held that the Magistrate on receipt of the Police report under S.173(1) of the Code may do one of the three things :
"(1) he may decide that there is no sufficient ground for proceeding further and drop action;
(2) he may take cognizance of the offence under S.190(1)(b) on the basis of the Police report and issue processes. This he may do without being bound in any manner by the conclusion arrived at by the Police in their report; and
(3) he may take cognizance of the offence under S.190(1)(a), on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses u/s. 200".
6. In the instant case, the Chief Judicial Magistrate took cognizance of the case under S.190(1)(b) of the Code. He has discussed the statements of the witnesses as found in the case diary from which it appears that there are three types of materials against these petitioners some witnesses have claimed to have seen these petitioners setting fire to the house on the alleged date and time of occurrence, some have seen them fleeing away from the place of occurrence and some claim to have reached the place of occurrence on hearing hulla and, to them, the first (O.P. No. 2) stated that these petitioners fled away after setting fire to his house. After taking into consideration these statements of the witnesses, the l
