JAI PRAKASH NR YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner has challenged the order dated 16.11.2005 passed in Cr. Rev. No. 76 of 2005 by Session Judge, Jamui affirming the order dated 24.10.2005, passed by the C.J.M., Jamui in Khaira P.S. Case No. 187 of 2005, whereby the applications filed by the Investigating Officer for inclusion of Section 409 of the Indian Penal Code as well as for issuance of warrant of arrest have been allowed. These orders have been challenged by the petitioner on the ground that the orders are without jurisdiction as Cr.P.C. vests no such power to the C.J.M. in exercise of which he can direct the investigating agency to include sections making out cognizable offence, without any material before him, warrant of arrest has been issued for production of accused before the police in aid of investigation, which is illegal and against the provisions of Section 73 of the Cr.P.C. Short facts of the case is that during election of Bihar Assembly 2005, three persons namely Ashok Ram, Batohi Yadav and Bijay Prakash were apprehended on 18.10.2005 as they were found moving with cash, arms and foreign liquor. In this connection Khaira P.S. Case No. 183 of 2005 was registered under sections 123, 132 of the Representation of People Act, 47, Excise Act, 25(1)(a), 26 and 35 of the Arms Act as well as Sections 353, 171 and 201 of the Indian Penal Code. The arrested persons were brought to the police station and kept in Hajat of Khaira police station. Investigation of the case was entrusted to S.I. Mukeshwar Prasad. One of the accused Vijay Prakash is the brother of present petitioner Jai Prakash Narayan Yadav, who was State Minister of Water Resources Department in the Union Cabinet, at the relevant time. Jai Prakash Narayan Yadav is alleged to have come with his supporters and pressurized the Officer -in -charge to release the arrested accused. In conspiracy with the officer -in -charge procured an order for release of accused persons in a case of non -bailable offence on bail bond. The Officer -in -charge, though not competent to release the accused in a non -bailable offence released the accused persons. In this connection Khaira P.S. Case No. 187 of 2005 was registered on 20.10.2005 for the offence under Sections 218, 225(A)(1) and 120B of the Indian Penal Code. On 21.10.2005 accused Vijay Prakash filed Complaint Case No. 880(c) of 2005 in the court of C.J.M. alleging assault and humiliation by the Superintendent of Police, Jamui. Three days thereafter on 24.10.2005 an application was filed before C.J.M., Jamui, by the Investigating Officer of Khaira P.S. Case No. 187 of 2005 with a prayer to add offence under section 409 of the Indian Penal Code. This application was allowed by the C.J.M. on the same day. The Investigating Officer on 24.10.2005 itself filed a requisition with a prayer to issue warrant of arrest (non -bailable) against F.I.R. named accused persons as well as non F.I.R. named accused persons. This requisition was partially allowed as non -bailable warrant of arrest was issued against F.I.R. named accused persons but so far non F.I.R. named accused persons are concerned, it was rejected.

(2.) PETITIONER has challenged both the orders dated 24.10.2005 i.e. inclusion of section 409 of the Indian Penal Code as well as issuance of warrant of arrest in Cr. Rev. No. 76 of 2005. This revision application was rejected by order dated 16.11.2005 with a finding that no impropriety or illegality has been committed while passing the impugned orders. It was also held that under the revisional jurisdiction the impugned order cannot be interfered with.

(3.) COUNSEL for the petitioner has submitted that the impugned orders are glaring example of jurisdictional error. Initially the case was instituted under sections 218, 225(A)(1) and 120B of the Indian Penal Code, which are bailable offences. Just after four days of the institution of the case an application was filed by the Investigating Officer for inclusion of Section 409 of the Indian Penal Code in order to bring the case in the category of cognizable offence. The Chief Judicial Magistrate, Jamui without there being any material on record has allowed the prayer of the Investigating Officer although there is no provision under Cr.P.C. for passing such order. Once cognizable offence was ordered to be included, on the same day the warrant of arrest was issued in aid of investigation and for compelling the F.I.R. named accused persons to appear which is not permissible under the provisions of law.