NATHUN YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioners have filed the present application for quashing the order dated 17.2.2000 passed in Sessions Triat No. 254 of 1999 by Addl. Sessions Judge, VIM, by which the application filed under Section 227 of the Code of Criminal Procedure (hereinafter referred to as the Code) to discharge them in the said case under Sections 302, 120 B and other Section of Indian Penal Code and Section 17 of the Criminal Law (Amendment) Act has been rejected and ordered for framing of charges under the said sections. H.M.P.Sugars Limited Versus Union Of India

(2.) THE prosecution case is that Smt. Tetari Devi, wife of Late Surender Beldar of village Rampur, P.S. Tekari, District Gaya lodged a fardbeyan on 2.12.1996 at 1.30 A.M. alleging therein that on 1.12.1996 at 6 P.M. her husband and her younger brother -in -law were taking rest in the house after taking meal. Other family members were also present. Then large number of extremists including the petitioners came. They cut their neck and killed them on the spot and left the places after raising slogans of MCC.The Police after investigation submitted charge sheet against some of the accused persons and has not sent up the petitioners and two Others. Two of them merely, Nathun Yadav and Arjun Yadav came to this Court for quashing the order of cognizance in Cr. Misc. 12289 of 1997. The said application was dismissed with an observation that the petitioners may raise all the points raised in that application at the time of framing of charges. Thereafter at the time of framing of charges, the petitioners filed the said application under Section 227 of the Code. It was submitted on behalf of the petitioners that no case is made out and the Court below having considered the materials found that prima facie case is made out and accordingly, rejected the prayer of the petitioners. Hence, the present application.

(3.) THE Supreme Court in the case of Raghubans Dubey V/s. State of Bihar, reported in AIR 1967 page 1167, held that once the Magistrate takes cognizance, it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police there are material against the other accused persons for issuance of summons, he can summon the accused. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. The Apex Court in the case of Swil Ltd. V/s. State of Delhi, reported in (2001) 6 Supreme Court Cases 670, relying upon the aforesaid judgments held that even if the accused person has not been sent up by the police, he should also be summoned by the Magistrate taking cognziance and at this stage, Section 319 Cr. PC. does not operate in such situation. It is relevant to quote paragraphs 6 and 7 of the judgment which are as follows : "In our view, from the facts stated above, it is clear that at the stage of taking cognizance of the offence, provisions of Section 190 Cr. P.C. would be applicable. Section 190 inter alia provides that "the Magistrate may take cognizance of any offence upon a police report of such facts which constitute an offence". As per this provision, the Magistrate takes cognizance of an offence and not the offender. After taking cognizance of the offence, the Magistrate under Section 204 Cr. P.C. is empowered to issue process to the accused. At the stage of issuing process, it is for the Magistrate to decide whether process should be issued against particular person/persons named in the charge - sheet and also not named therein. For that purpose, he is required to consider 4/1/2013 Pathe ge 39 FIR and the statements recorded by the police officer and other documents tendered along with charge -sheet. Fur ther, upon receipt of police report under Section 173(2) Cr. PC, the Magistrate is entitled to take cognizance of an offence under Section 190(1) (b) even if the police report is to the effect that no case is made out against the accused by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the H.M.P.Sugars Limited Versus Union Of India witnesses examined by the police. At this stage, there is no question of application of Section 319 Cr. P.C. Similar contention was negatived by this Court in Raghubans Dubey V/s. State of Bihar by holding thus : (AIR P. 1169, para 9)