GAJENDRA SWAROOP Vs. BALESHWAR PRASAD

JUDGEMENT

(1.) A veiled doubt about the correctness of the long standing ratio of the Full Bench in Bharat Kishore Lal Singh Deo v. Judhistir Modak (AIR 1929 Pat 473) has, indeed, necessitated this reference to a still larger Bench of five Judges. The two meaningful issues, which have crystallised and come to the fore, may well be formulated as under :-

(2.) Equally at issue is the correctness of the Division Bench judgment on Ram Kumar Pandey v. State of Bihar (1979 BBCJ 293) answering question No. (ii) in the affirmative.

(3.) In the context of the aforesaid pristinely legal issues, the facts inevitably pale into relative insignificance. Nevertheless, the terra-firma of their matrix must be noticed albeit with brevity. Way back on the 15th of July, 1978 the complainant opposite party filed a written petition before the Officer-in-charge of Deoghar police station alleging the commission of substantive offences vide annexure 1 to the petition. The police authorities however, after inquiry, recommended the initiation of proceeding under Section 107 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the 'Code') which was initiated against both the parties and ultimately the said proceeding was dropped after the lapse of a period of six months. The complainant opposite party then filed a complaint petition on the 22nd of August, 1976 before the Additional Chief Judicial Magistrate, Deoghar who sent it to the Officer-in-charge of Deoghar Police station for investigation. The police submitted a report on the 31st October, 1978 holding that an offence under Section 500 of the Indian Penal Code alone had been made out. The complainant opposite party thereafter filed a protest petition on the 2nd of April, 1979 (Annexure 5) before the Additional Chief Judicial Magistrate praying that the same be treated as a complaint. The court examined the complainant on solemn affirmation on the 21st of May, 1979 and also examined four other witnesses named in the complaint petition. Thereafter, by the impugned order (annexure 6) dated the 28th of July, 1979, the learned Magistrate took cognizance of offences under Sections 307 and 500 of the Indian Penal Code and issued process by way of warrant of arrest against the petitioner. The learned Magistrate recorded that he had perused the statement and also affirmation of the complainant and the statement of his four witnesses and by way of further assurance also referred to the statement in writing filed by the complainant in the police station. From the above pieces of evidence, he priraa facie found the commission of offence under Sections 307 and 500 of the Indian Penal Code and retained the case on his own file.