S M ABDUR RAHIM Vs. STATE OF BIHAR

JUDGEMENT

(1.) The short point, which has to be decided in this case, is that when a case is pending on a police report against some persons, thereafter a complaint is filed for the same occurrence against some more persons and the complaint case is sent to the court where the police case is pending under S. 210 of the Criminal P.C. (hereinafter to be referred as the Code) whether the Magistrate has the power to issue processes against those newly added accused persons whose names do not find place in the police report.

(2.) The facts, giving rise to this application are that; on the basis of the Fardbeyan lodged by one Sheikh Shahid against Abdul Razak a case was registered and after investigation charge sheet was submitted against him on which cognizance was taken under Ss. 279 and 304A of the Penal Code. Prior to that a complaint was filed by Mehrunnisa, wife of the deceased, against three more persons including the petitioner. A report was called for from the Police if any case was pending relating to the same occurrence and a report was received that charge sheet had already been submitted against one person. The learned Magistrate, by his order dated 24-4-1976, transferred the case to the Court of the Magistrate where the Police case was pending. On receipt of the records of the complaint case the learned Magistrate after looking into the records, by his order dated 13-10-1977, issued process against the three accused persons under S. 210 sub-cl. (2) of the Code and further ordered that since both the cases relate to the same occurrence, it will be treated and proceed as a police case. Being aggrieved by the aforesaid order, the petitioner alone has moved this Court.

(3.) Learned counsel, appearing on behalf of the petitioner, has contended that the complaint case has been transferred to the Court where the Police case was pending and, the complaint case loses its identity and, therefore, the Magistrate has no right to summon the petitioner. He has, further, submitted that the summons could only have been issued on fresh materials, that is after examination of some witnesses, as envisaged under S. 319 of the Code. Learned counsel, appearing on behalf of the State, has on the other hand, submitted that cognizance is taken of the offence and not of the offenders and, therefore, the Magistrate was fully justified in summoning the petitioner and others who are named in the petition of complaint because of the specific allegations made against them. When this case came up for hearing before me, I felt some difficulty as it was a case of first impression and, therefore, by order dated 19-6-1982 I referred it to Division Bench and that is how it has come before us.