PARASURAM JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Whether a Judicial Magistrate, having postponed the issue of process and directed an investigation under S. 202 of the Code of Criminal Procedure, would thereafter be precluded from inquiring into the case himself even though he is not satisfied or is in disagreement with the investigation report, is the significant issue necessitating this reference to the Division Bench.

(2.) The issue aforesaid arises from facts which are not in serious dispute. The three petitioners herein seek the quashing of the cognizance of offences taken against them by the Chief Judicial Magistrate, Muzaffarpur. Respondent (opposite party) No. 2, Ramdeni Thakur, had preferred a complaint under sections 323, 379 and 225 of the Penal Code before the Chief Judicial Magistrate, Muzaffarpur, way back on the 6th of October, 1980. The learned Chief Judicial Magistrate examined the complainant on solemn affirmation and thereafter postponed the issue of process and directed an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding under section 202 of the Code of Criminal Procedure (hereinafter to be referred to as the 'Code'), by the Sub-Registrar, Sakra Registration Office. Dissatisfied with this direction, the complainant repeatedly prayed before the Magistrate for recalling the investigation from the Sub-Registrar and entrusting it to some other person. It would appear that for well-nigh two years no progress worth the name was made by the investigator, and by his order dated the 17th of June, 1982 the Magistrate finding that he had not chosen to send the report, recalled the same from him and sent it to the Circle Officer, Moraul Block, for inquiry under section 202, directing him to report by the 6th of August, 1982. On the 9th September, 1982 the Magistrate perused the report of the said investigator along with the evidence recorded by him and held that he was not satisfied with the said report and directed that the case be put up for an inquiry under section 202 by the Court itself. It would appear that thereafter he examined three witnesses, namely, Doman Paswan, Gayanath Jha and Ramdeo Thakur under section 202 himself and after hearing the complainant was satisfied that a prima facie case for the offences under sections 323, 379 and 225 was made out against the petitioners and directed the issue of summons.

(3.) Now, the core of the case projected on behalf of the petitioners is that once the Magistrate orders an investigation by another person under Sec. 202, he has no further jurisdiction whatsoever to himself inquire into the matter. The stand is sought to be buttressed by a hypertechnical emphasis on the use of the words "either" and "or" in Sec. 202, and it is contended that only two clear cut and mutually exclusive alternatives are open to the Magistrate, namely, either to inquire into the case himself or direct an investigation by a police officer or any other person. It is the case that he cannot have resort to both and having once resorted to one of the alternatives, any further resort to the other is precluded. Primary reliance for the aforesaid stand has been placed on Emperor v. Durga Prasad, AIR 1922 All 211, Radha Kishun Sao v. S.K.Misra, AIR 1949 Pat 36 and Sankar Chandra Ghose v. Roopraj S.Bhansally, 1981 Cri LJ 1002.