LAWS(PAT)-2006-9-114

ABUL KAISH Vs. STATE OF BIHAR

Decided On September 20, 2006
Abul Kaish Appellant
V/S
STATE OF BIHAR Respondents

JUDGEMENT

(1.) HEARD counsel for the parties.

(2.) THE two petitioners, namely, Abul Kaish and Md. Zafir, are aggrieved by an order, dated 18.9.2006 passed by the learned Sessions Judge, Supaul in Criminal Revision No. 86 of 2005 affirming the order taking cognizance, dated 17.3.2005 passed by the Chief Judicial Magistrate, Supaul. The facts which would be necessary to be noticed is that the First Information Report, dated 3.6.1998 being Kishanpur PS Case No. 62 of 1998 was instituted on the fardbeyan of one Amrica Devi wherein she had named seven persons including these two petitioners as accused alleging offences under Sections 147, 341, 323 and 354 of the Indian Penal Code and 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The police after investigation had submitted charge -sheet against five other accused persons but not against these two petitioners on 31.1.1999 and thereafter it appears that the Chief Judicial Magistrate, Supaul had also taken cognizance against five accused persons (hot petitioners). Subsequently, it appears that in view of the provision made in Section 7 of the Sche - duled Castes and Scheduled Tribea (Pre - vention of Atrocities) Act, the Chief Judicial Magistrate had recalled his order taking cognizance and had directed for further investigation by the competent officer not below the rank of Deputy Superintendent of police. The Deputy Superintendent of Police had thereafter re - investigated the whole case and had submitted charge -sheet on 6.2.2002 and again not against these two petitioners and, therefore, they were not sent up for trial in view of a final form submitted against them by the Police. The Chief Judicial Magistrate, however, by his order dated 17.3.2005 had taken cognizance for offences under Sections 147, 323, 341 and 354 of the Penal Code and 3(i)(x) of the Scheduled Castes and Sche - duled Tribes (Prevention of Atrocities) Act and issued process not only against the persons against whom charge -sheet was submitted on 31.1.1999 but also against these two petitioners by holding that on perusal of the case diary, he had found that there were materials to show the complicity of these two petitioners. The Chief Judicial Magistrate for arriving at his findings in his order, dated 17.3.2005 has specifically referred to paragraphs 2, 3, 4, 5, 7, 22, 31 and 42 of the main case diary and paragraphs 5, 6, 7 and 10 of the supplementary case diary (the note of investigation by the DSP). Thereafter, the petitioners along with two other accused persons had assailed the aforementioned order taking cognizance, dated 17.3.2005 in Criminal Revision No. 86 of 2005 which came to be dismissed by an order, dated 18.9.2006. The Additional Sessions Judge in the revisional order had only gone to hold that there was no infirmity in the procedure merely because the case was re -investigated by the police pursuant to a direction of the Chief Judicial Magistrate in view of Section 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

(3.) MR . Farooque Ahmad Khan, Senior Counsel appearing on behalf of the petitioners has submitted that there was no illegality in the re -investigation of the case as the same could definitely be supported under the provisions of Section 173(8) of the Cr PC and equally there was no infirmity in holding of the further investigation or that the order taking cognizance on the basis of the same. Mr. Khan infact submitted that he would confine his submissions only in relation to these two petitioners and in this context, he has invited my attention to the statements made by the persons who were examined by the police in various paragraphs of the case diary which went to show that the name of the petitioners were not even remotely referred to in connection with any part of the occurrence. According to him, the only an omnibus and vague allegation against the petitioners could be traced out from the contents of the First Information Report which were also not at all corroborated in course of investigation by the police and as such the impugned order taking cognizance against the two petitioners was devoid of any substance. In this connection, he had emphatically submitted that it was due to lack of any material against the petitioners that the police after conducting investigation and further investigation had submitted final form on both the occasions by not sending either of them to face trial whereas the police had submitted charge - sheet against the remaining five accused persons against whom it had found sufficient materials. It was thus contended that the Court below had committed material irregularity in summoning the two petitioners of this case to face trial while taking cognizance while differing with the police report i.e. final form submitted against the two petitioners.