Criminal Misc. petition challenging a lower court order cognising offences and summoning petitioners exonerated by police. Court quashed order for Lack of reasons.
Order dated 30.05.2011 quashed as far as petitioners are concerned; matter remitted to lower court to assign reasons if proceeding further.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.21346 of 2011
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER
6 28-04-2014 Heard Sri Amar Nath Singh, learned counsel for the petitioners, Sri Dilip Kumar, learned Addl. Public Prosecutor and Sri Rama Kant Singh, learned counsel for Opp.Party no.2.
Four petitioners, invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 30.05.2011 passed in Maranchi P.S. Case No. 63 of 2009 by the learned Addl. Chief Judicial Magistrate, Barh. By the said order, the learned
Magistrate has taken cognizance of offence under Section 498(A)/34 of the Indian Penal Code and 3 /4 of the Dowry Prohibition Act.
Short fact of the case is that earlier on the basis of a
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written complaint of Opp.Party no.2, an F.I.R. vide Marachi P.S. Case No.63 of 2009 was registered for the offence under Sections 498(A), 406/34 of the Indian Penal Code and 3 /4 of the Dowry Prohibition Act against seven accused persons, which includes all the four petitioners. However, during investigation, accusations were not found true and, as such, they were not sent up for trial, whereas chargesheet was submitted against husband, father-in-law and mother-in-law of the informant. After submission of report by the police, the learned Magistrate by the impugned order has passed order of cognizance and directed for summoning all the accused persons including the petitioners.
Sri Amar Nath Singh, learned counsel for the petitioners submits that the petitioner no.1 is elder brother of husband of Opp.Party no.2, petitioner no.2 is his wife, petitioner no.3 is younger brother of husband of the informant/Opp.Party no.2 and petitioner no.4 is married sister of husband of Opp.Party no.2. He submits that though in the F.I.R. all the petitioners were arrayed as accused, during investigation accusation against them was not found true and, as such, they were exonerated, whereas the husband, father-in-law and mother-in-law of the informant/Opp.Party no.2 were forwarded. It has been argued that after submission of final report in respect of petitioners, a protest
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petition was filed by the informant and the learned Magistrate even at the time of passing order of cognizance had noticed the protest petition and passed order of cognizance. It has been categorically argued that once final report was submitted against the petitioners, learned Magistrate though was competent to pass order of cognizance differing with the police report, in that event he was required to assign some reason, whereas without assigning reason the learned Magistrate has passed order of cognizance, which is required to be interfered with.
Sri Rama Kant Singh, learned counsel for the informant/Opp.Party no.2 has vehemently opposed the prayer of the petitioners. He submits that even though in the case diary, there was sufficient material against the petitioner, the supervising officer had opined that no case is made out and on the basis of opinion of the supervising authority, final report was submitted and, as such, the learned Magistrate, while passing the order of cognizance, has committed no error. He further submits that the learned Magistrate, on perusal of case diary as well as materials available on record, was satisfied and thereafter order of cognizance was passed.
Besides hearing learned counsel for the parties, I have also perused the material available on record. On perusal of
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Annexure-4 to the petition i.e. Chargesheet No.69 of 2010 dated 30.09.2010 , it is evident that in Col. No.11 of the chargesheet , only name of three accused persons were mentioned, who were husband, father-in-law and mother-in-law of the informant, whereas petitioners were exonerated by the Investigating Agency. Once after investigation, the police exonerate the accused persons and submits final report, learned Magistrate is not divested with the power of taking cognizance even differing with the police report. However, while differing with the police report, it is required to assign some reason. Once in a police case, a report after investigation is submitted by the police, same may not be treated as waste paper. Once a report is submitted exonerating the accused, the learned Magistrate, who is competent of pass order of cognizance differing with the police report, at the same time is required to succinctly assign reason. On perusal of the impugned order, the Court is satisfied that no reason has been assigned. In that view of the matter, the order is required to be interfered with and, accordingly, order dated 30.05.2011 passed in Maranchi P.S. Case No.63 of 2009 so far as petitioners are concerned is hereby set aside and the matter is remitted back to the court below. If the learned Magistrate considers to proceed against the petitioners, in that event he is required to assign some reason.
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With above observation and direction the petition stands
allowed.
(Rakesh Kumar, J)
NKS/-
1 issue framed by the court
Whether the lower court erred in taking cognizance and summoning petitioners who were exonerated by the police report without assigning reasons.
Rajeev Kumar @ Ful Kumar
Sangeeta Kumari
Shailesh Kumar
Daiji Kumari
The State of Bihar
Runny Kumari alias Babita Kumari
Rakesh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
