TIKARAM AGARWALLA Vs. STATE AND ORS.

JUDGEMENT

(1.) THIS revision has been filed against the order dated 23 -5 -1975 passed in G.R. Case No. 437 of 1974 on the file of the Sub -Divisional Judicial Magistrate, Bolangir.

(2.) ON the information lodged by Hareram Satpathy on 29 -11 -1974 regarding the murder of his brother Parsuram Satpathy Bolangir P.S. Case No. 281 of 1974 was registered, and the police started investigation into that case, and in respect - of that cas G.R. Case No. 437 of 1974 was registered in the Court of the Sui: divisional Judicial Magistrate, Bolangir while the said case was being investigated Sitaram Satpathy (opposite party No. 1 herein another brother of the deceased filed a complaint petition relating to the same murder and alleged therein that the police was no properly investigating into the case. The above mentioned F.I.R. was against accused persons, whereas the complaint petition was against 13 accused persons including the ten named in the F.I.R.. The complaint case was registered as I.C.C. No. 6/75 in the Court of the Sub -Divisional Judicial Magistrate, Bolangir. The Court after recording the initial deposition of the complainant on 1 -2 -1975 stayed all proceedings relating to the complaint case in accordance with the provision of Section 210(1), Code of Criminal Procedure 1973, as the matter relating to which the complaint petition was filed was being investigated by the police and in respect of the same matter G.R. Case No. 437 of 1974 had already been registered in his Court. The police after investigation of the said case, on 10 -2 -1975 submitted the charge sheet, under Sections 302 and 147, Indian Penal Code only against six persons. Of the six charge sheeted accused persons, four have been named in the F.I.R. and the names of the rest two, namely Prafulla Bhoi and Sugyan Sandha, do not appear in the F.I.R. All the charge -sheeted accused persons are of course included, amongst the 13 accused persons named in the complaint petition. Certain petitions were thereafter filed in the Court below on behalf of both the parties, and the Magistrate heard both the parties including the lawyer for the complainant in I.C.C. No. 6 of 1975, and decided by the impugned order, to enquire into the said complaint case under Section 202, Code of Criminal Procedure in respect of those accused persons who were not charge -sheeted by the police in the G.R. Case. This revision has been filed by Tikaram Agarwalla one of the accused persons whose name appears in the F.I.R. as well as in the complaint petition, but has nut been charge -sheeted by the police.

(3.) THERE is no legal sanction behind the above mentioned submission of Mr. Palit. The legislature does not attach implicit credence and confidence to police investigation as is evidenced from the provisions, to mention only a few, of Section 162, proviso to Section 164(1) Section 167, Sections 227, 239, proviso to Section 302(1) and Section 25 and 26 of the Evidence Act. Moreover, the police for various obvious reasons cannot have the last say in such matter, only because the procedural law gives them the power to investigate into such matters. Section 319 specifiable provides that a Court can proceed against accused persons other than those reported against in a particular case. It is also well settled that a Magistrate taking cognizance of an offence as per Section 190(1)(b), Code of Criminal Procedure is not restricted in any manner to proceed only against the accused persons named in the police report filed under Section 173, Criminal Procedure Code. When cognizance is taken on police report, the Court takes cognizance of the offences constituted by the facts reported in the said police report. The Court takes cognizance of the offence and not of the offenders and once it takes cognizance at an offence, it is the duty of the Court to find out who the offenders really are, and once It comes to the conclusion that apart from the persons sent up by the police some other persons also are involved in the said offence it is the duty of the Court to proceed against those persons also. Their lordships of the Supreme Court in Raghubans Dubey's case : A.I.R. 1967 S.C 1167, referred with approval to the decision on this point of the Calcutta High Court in Saifar and Ors. v. State of w Bengal : A.I.R.1952 Cal. 133 in which by following the Full Bench decision reported in Mehrab and Anr. v. The Crown, A.I.R. 1924 Sind 71 (F.B.), it was held that when a Magistrate takes cognizance under Section 190(1))b) on a police report, he takes cognizance of the offence and not merely of the particular persons named in the charge sheet, and therefore the Magistrate is entitled to summon additional accused persons against whom he considers that there was good evidence after perusal of the statement recorded by the police under Section 161, Code of Criminal Procedure and the other documents referred to in Section 173, even without examination of witnesses in Court. The above view sanctified by its acceptance by the Supreme Court, goes contrary to Mr. Palit's submission.