Back
2009 Supreme(Pat) 1520
PATNA HIGH COURT
Samarendra Pratap Singh, J.
Gulab Yadav Son Of Jagdish Yadav
Versus
State Of Bihar
Criminal Miscellaneous No. 32067 of 2007
Decided On : DECEMBER 4, 2009
Headnote:Code of Criminal Procedure, 1973-Section 190 (1) (b)-Cognizance on Police report-A Magistrate while exercising power of cognizance under Section 190 (1) (b) Cr. P.C. can differ with the police report and summon a person who has not been charge-sheeted or sent up for trial-The position would be no different, even if the case is one, which may be triable by a court of sessions. (Para 12)
Code of Criminal Procedure, 1973-Sections 156(1), 173 (2) & 173 (B)-Police investigation-In a case where a number of persons have been made accused, police is at liberty to submit charge-sheet in respect of those against whom investigation is complete u/s 173 (2) Cr. P.C. and to continue investigation against rest of the accused persons and such continuance of investigation against remaining accused persons would be an investigation u/s 156(1) Cr. P.C. and is distinct and different from further investigation provided u/s 173 (f.?) Cr. P.C.-In the present case, the police submitted charge-sheet against 8 named and one non-F.I.R. accused out of 21 F.I.R. named accused and kept investigation pending against rest 12 of named accused persons-Magistrate took cognizance and summoned 9 accused persons who were charge-sheeted in first police report-Final report submitted in respect of remaining 12 accused persons-Magistrate was right in summoning them as well. (Para 16 & 17)
2007 (2) P.L.J.R. 825; (1998) 7 SCC 149; (2004) 13 SCC 11; (2004) 13 SCC 09; 2008(3) PLJR 28; AIR 1968SC 117; 1978 BLJR 377; AIR 1980 SC 1883; 1998 (3) PLJR 507; (2006) 4 SCC 359; (2008) 1 SCC (Cri) 36; 1995 SCC (Cri) 16-Referred to.
1. In the instant application the petitioners pray for quashing the order dated 11.10.2001, passed in G.R. No. 46/99 by S.D.J.M., Birpur, whereby he has taken cognizance of offence under Sections 147, 148, 307, 504 of the Penal Code and Section 27 of the Arms Act and summoned the petitioners to face trial and also the order dated 31.5.2007 passed in Cr. Revision No. 180/01 whereby the revisional court refused to interfere with the order taking cognizance.
2. On the written statement of one Raghunandan Yadav, Raghopur P.S. Case No. 8/99 under Sections 147, 148, 380, 436, 307 and 504 of the Penal Code dated 28.1.1999 was registered against 21 named accused persons. The allegation was that all the accused persons armed with deadly weapons attacked the prosecution side, as a result of which quite a number of people sustained both firearm and other injuries. The police after investigation submitted charge-sheet no. 18 of 2001 dated 3.5.2001 under Sections 147, 148, 307, 504 of the Penal Code and Section 27 of the Arms Act against eight (8) F.I.R. named accused and one Shatrughan Sada, while keeping investigation against the rest of the 12 named accused persons pending.
3. The Magistrate thereupon vide his order dated 21.5.2001 took cognizance of offence under Sections 147, 148, 307, 504 of the Penal Code and summoned the 9 accused persons against whom investigation was complete and charge-sheet was submitted. It is submitted that soon thereafter the police completed invesligation against the remaining 12 accused and submitted final form in their favour.
4. However, the learned Magistrate vide his order dated 10.12.2001 differing with police report summoned the remaining 12 F.I.R. named accused, who are petitioners here, to also face trial under Sections 147, 148, 307, 504 of the Penal Code and Section 27 of the Arms Act. The petitioners challenged the order dated 10.12.2001 summoning them to face trial in revision before the Sessions Court which was dismissed on 31.5.2007 vide Criminal Revision No. 180 of 2001.
5. The petitioners have assailed the impugned orders passed by both the Magistrate and the revisional court on the ground that a Magistrate cannot issue summon in sessions triable case, more so when final form has been submitted in their favour. In support of his submission, learned counsel has relied upon a decision of this court in the case of Ram Nandan Singh @ Ram Nandan Yadav vs. State of Bihar, reported in 2007(2) P.L.J.R. 825. In the aforesaid case, the learned Single Judge held that a Magistrate cannot issue process against a person who has not been charge-sheeted in a sessions triable case and can be arrayed as an accused only in exercise of power under Section 319 Cr.P.C. In coming to the aforesaid view, the learned Single Judge relied upon three Judges bench cases in Ranjit Singh vs. State of Punjab, reported in (1998)7 SCC 149; Kishori Singh & Ors. vs. State of Bihar & Anr., reported in (2004) 13 SCC 11 and another three Judges Bench case in the case of Dharampal Singh vs. State of Haryana & Ors., reported in (2004)13 SCC 9.
6. A similar issue, whether a Magistrate can differ with the police report and summon a person not charge-sheeted in sessions triable case, also cropped up in the case of Janeshwar Singh vs. State of Bihar. Learned Single Judge differing with view of learned Single Judge in the case of Ram Nandan Singh (supra) referred the case to the Division Bench.
7. The Division Bench after considering various judgments of the Honble Apex Court disagreed with the view taken by the learned Single Judge in the case of Ram Nandan Singh (supra). The Division Bench in para-8 of its judgment (Janeshwar Singh vs. State of Bihar), reported in 2008(3) P.L.J.R. 28 held as follows:
"8. Hence with due respect to the learned Single Judge who decided the case of Ram Nandan Singh vs. The State of Bihar, we find ourselves in disagreement with the view that the Magistrate cannot issue process against a person who
