RAGHUBANSH DUBEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The facts giving rise to this application in revision are these. One Raja Ram Sao lodged a first information report on the 29th of July, 1959 against fifteen persons including the petitioner Raghubansh Dubey. In due course, the police submitted final form under Section 173 of the Code of Criminal Procedure; and the Police recommended that, except Raghubansh Dubey, the other persons named as accused in the first information report should be tried. In other words, Raghubansh Dubey was not sent up by the police for triar. On the 5th April, 1961, the Sub-divisional Magistrate passed the following order :-

(2.) Mr. Baldeo Prasad Singh raised two points challenging this order. He submitted that the petition dated 11-4-61 amounted to a protest petition, and therefore, it is a petition of complaint. Summoning Raghubansh Dubey on the basis of a petition of complaint would result in a separate complaint case, and if Raghubansh Dubey is tried along with the other accused persons under Section 207-A of the Code of Criminal Procedure, he would be at a disadvantage, because the provisions contained in Chapter XVIII of the Code relating to complaint cases are more advantageous to the accused, particularly because he has the opportunity to cross examine the prosecution witnesses before the charge is framed. Learned counsel cited the decision of the Supreme Court in Hanumantha Rao v. State of Andhra Pradesh, (S) AIR 1957 SC 927 to show the important distinctions between an enquiry in respect of Police report and an enquiry in respect of complaint cases. But it is not necessary to go into this question, because we are of the opinion that the impugned order did not result in a separate complaint case against Raghubansh Dubey. Section 207 of the Code of Criminal Procedure reads as follows:

(3.) The next point urged by Mr. Singh was that the impugned order of Mr. L. P. Singh is highly irregular, as he summoned Raghubans Dubey on the same grounds on which the Subdivisional Magistrate had discharged him. On the other hand, the learned Advocate for the State submitted that the learned Subdivisional Magistrate did not seem to have applied his mind to the last sentence of the order dated 5-4-61, namely, "Accused not sent up far trial is discharged". But the point raised by Mr. Baldeo Prasad Singh is easily met by the fact that the Magistrate, Mr. Singh, did not summon Raghubansh on only those grounds which were before the Sub-divisional Magistrate. The materials before the two Magistrates were net identical. The Sub-divisional Magistrate acted on the Police report alone; but Mr. Singh took into consideration the evidence of two prosecution witnesses examined in court as well. The Magistrate to whom a case is transferred under Section 192 of the Code of Criminal Procedure, is in seisin of the whole case, whether it be a case instituted on a Police report or on a complaint petition, and that Magistrate has the power to summon any person as an accused, although he may not have been summoned by the transferor Magistrate -- see Province of Bihar v. Bhim Bera, AIR 1947 Pat 284. The action of Mr. L. P. Singh in summoning Raghubansh is, therefore, neither illegal nor irregular, and this contention of Mr. Baldeo Prasad Singh also fails.