PAWAN KUMAR YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE matter is of academic interest and has become debatable in view of divergent judicial precedents of the Court.

(2.) FACTUAL matrixSalkhua PS. Case No. 13 of 1998 was registered under Section 302 and other allied sections of the Indian Penal Code (IPC) at the behest of Pawan Kumar Yadav. With accusations that while the deceased was returing after casting vote in a booth situated in a Project Girls High School, Salkhua, he was intercepted by a number of persons including Ranjit Kumar Yadav, Kailash Yadav, Bishundeo Yadav, Sanjay Yadav, Biro Yadav, Tapesh Kumar Yadav, Ravindra Yadav, Bhavesh Kumar Yadav, Arvind Yadav, Mukesh Yadav and Kamleshwari Yadav, who assaulted him and when his brother came for his rescue, he too suffered assault, pursuant to which Ranjit Kumar Yadav shot dead Ram Pravesh Yadav. After the Police was set in motion, investigation commenced and during investigation, Police recorded statements of a number of witnesses, including father of the deceased, other family members and other witnesses, and while it recommended trial of Ranjit Kumar Yadav, who was absconding, the rest 10 persons were not sent up for trial.

(3.) THE Chief Judicial Magistrate, Saharsa, on submission of the Police report under section 173 (2) of the Code of Criminal Procedure (hereinafter to be referred to as the Code), and on examination of the statement of the witnesses recorded by the Police during investigation and other materials on record and also following the judicial precedents, directed issuance of summons also against the rest 10 accused persons, who were not sent up for trial by the Police. The aggrieved persons, sought to be put on trial by the order of the Chief Judicial Magistrate, preferred two Criminal Revisions bearing Cr. Rev. Nos. 150 and 151 of 1999. and challenged the findings recorded by the Chief Judicial Magistrate. It seems that the Additional Sessions Judge, Saharsa, who was in seisin of the proceeding, following the decision of the Apex Court of the land, took a view that the Chief Judiciai Magistrate was not empowered to take cognizance of the offences, which were triable by the Court of Session, when the Police had not recommended the case for trial when such powers were implicit under section 190(1)(b) of the Code, and on these premises both the revision applications were allowed impliedly negativing the findings recorded by the Chief Judicial Magistrate, directing issuance of summons aiso against ten accused persons. Now, in their turn, the aggrieved informant has sought to invoke the jurisdiction of the Court in this criminal revision and it is sought to be urged at Bar on behalf of the petitioner that on appreciation of construction of section 190(1)(b) of the Code, in which it is couched, the finding recored by the Additional Sessions Judge was in violation of the principles laid down in the Code in regard to jurisdiction of taking cognizance of the offence triable by the Court of Session. Contentions are raised at Bar that the Judicial precedent right from case of Abhinandan Jha V/s. Dinesh Mishra (AIR 1968 SC 117) had laid down a golden principle that notwithstanding submission of final report by the Police under section 173(2) of the Code, not recommending some of the accused to be put on trial, the Magistrate, who has the ultimate control over the investigation, was still within the jurisdiction and domain to negative the findings recorded by the Investigating Officer and take a contrary view of the matter to put the accused on trial and for issuance of summons against them.