BHAGWAT PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application under S. 482 of the Cr. P.C. (in short 'the Code') by the accused persons of Mohania P.S. Case No. 1(10)71 to quash the order dt. 6-10-1980 passed by the Additional Chief Judicial Magistrate, Bhabhua, in that case by which order the Magistrate, after having discharged the petitioners on accepting the Final Report submitted by the Police in the case, subsequently on a protest-petition by the First Informant and after enquiry under section 202 of the Code on that protest-petition, took cognizance against the petitioners in the case under Ss. 307, 436 etc. of the Penal Code by the impugned order.

(2.) Shorn of unnecessary details, the relevant fact, relevant for the purpose of this application, is that on a F.I.R. lodged by one Suchit Ahir at Mohania Police Station, a case bearing Mohania P.S. Case No. 1(10)71 was instituted under S. 307 and other sections of the Penal Code and the Arms Act. Subsequently, after completion of the investigation, the police submitted Final Form dt. 2-1-1973 stating case maliciously false. It appears that for a long time no order could be passed in the case on the Final Form which was submitted by the police as the record of the case appears to have been sent to the High Court. It may be mentioned that at that time, as the new Code of Criminal Procedure had not come into force, the case began to be adjourned from date to date for a long time awaiting the records back from the High Court. It appears that the First Informant claimed that during that period he had filed a protest petition against the Final Form Report submitted by the Police. It appears that subsequently, it was detected that some records of the case were misplaced, and, therefore, it appears from order dt. 25-2-1980 that when it was noticed by the Sessions Judge, it was ordered by him that the lost records be reconstructed and the matter be disposed of. In pursuance of that order, it appears that the Magistrate again began to dispose of the matter pending in the case. Then by order dt. 29-4-1980 the Final Form Report was accepted by the Magistrate, and by the same order the Magistrate also directed for hearing on the protest-petition of the First Informant, which was ultimately treated as a protest-complaint. Then on 5-6-1980 the protest-complainant was examined on solemn affirmation and the case was posted for enquiry under S. 202 of the Code. Then the complainant was asked to produce witnesses for that enquiry. Some witnesses were examined by the complainant and then, ultimately, on 6-10-1980, the Magistrate passed the impugned order taking cognizance in the case against the petitioners under Ss. 307, 436 and several other sections of the Penal Code. It is against that order that the present application has been filed by accused persons of the case.

(3.) The learned counsel for the petitioners has contended three points against the legality of the impugned order taking cognizance against them. I would take up those points one by one. The first point taken by the learned counsel is that the Final Form in the police case on the same facts having once been accepted, the Magistrate thereafter could not subsequently take cognizance in the case on the protest-complaint. But this contention of the learned counsel is not correct in view of the definite provisions of law in this respect contained in sub-sec. (3) of S. 210 of the Code. In this section provision has been made that when there are two cases, one on the police Report and the other on a complaint on the same facts pending before the Magistrate, sub-sec. (2) provides that in such a case if cognizance is taken on the police report, then the complaint case will also merge into and the case will proceed. Sub-sec. (3) of S. 210 of the Code contemplates a situation that when the Magistrate decides not to proceed with the police case and does not take cognizance in the police case, in that situation sub-sec. (3) provides as follows : -