KAILASH PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application has been filed for quashing the order dated 13. 5. 88 passed is complaint Case No. 586 of 1980 whereby cognizance against the petitioner has been taken for the offence under Section 302, 436, 144 of the Indian penal Code. The F. I. R. was lodged on 31. 12. 1973 against unknown in which allegation of murder of one person and also setting fire in the house of the informant was made. During the investigation by the police the case was handed over for investigation to the C. I. D. After investigation final report was submitted and recommended for the prosecution of the informant unde Section 182 and 211 of the Indian Penal Code. On 19. 7. 1975 cognizance was taken against the informant under Sections 182 and 211 of the Indian Penal Code. Order taking cognizance was recalled on 12. 11. 75. On 2. 2. 76 cognizance against the petitioners for the offence under Section 302 of the Indian penal Code was taken. The petitioner filed cr. Misc. No. 775/76 against the order dated 12. 11. 75 recalling the order taking cognizance against the informant and also cr. Misc. No. 603/76 against the order dated 2. 2. 76 taking cognizance against the petitioners for the offence under Section 302 I. P. C. Both the Cr. Misc. petition were heard together and were allowed on 19. 4. 77. However, it was disclosed before the court that protest petition is pending before the court below. The Court while quashing the order taking cognizance against the petitioners gave opportunity to the informant to press the protest petition before the Court below and directed the court below to take action in accordance with law. Thereafter the Court on 21. 8. 77 accepted the final report. However, the court treating the protest petition as the complaint petition started enquiry under section 201 of the Code of Criminal Procedure and after enquiry the order impugned was. passed taking cognizance against the petitioners for the offence under Section 302 of the Indian Penal Code.

(2.) LEARNED counsel for the petitioners contended that the Court below while taking cognizance against the petitioner has taken into consideration the materials collected during the investigation and in fact he did not consider the evidence brought on the record during the enquiry under section 202 of the Code of Criminal Procedure and hence cognizance taken against the petitioners is bad in law. On the other hand learned counsel for the State tried to support the order impugned.

(3.) ON consideration of the submissions made by the counsel for the parties and after going through the order impugned it is evident that the Magistrate considered the materials collected during the investigation and has taken cognizance against the petitioners. It is also the admitted position that the court below proceeded to enquire into the matter treating the protest petition as the complaint petition. The evidence brought of the record under Section 202 of the Code of Criminal Procedure was not taken into consideration. It is well established that if the Magistrate proceeds on the complaint petition he cannot look into the materials collected during the investigation. Furthermore, it appears from the observations made in Cr. Misc. no. 603/1976 that order taking cognizance on the basis of the materials collected during the investigation was quashed and opportunity was given to the informant to press the protest petition. It appears that the Magistrate also treating the protest petition as the complaint petition proceeded and enquired into the matter under Section 202 of the Code of Criminal procedure but has committed error in taking into consideration the materials collected during the investigation.