GAJENDRA SWAROOP SRIVASTAVA Vs. BALESHWAR PRASAD KESARI

JUDGEMENT

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

(2.) In the context of the aforesaid pristinely legal issues, the facts inevitably pale into relative insignificance. Nevertheless, the terra -firma of (sic) 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 Sec. 107of 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, 1978 before the Additional Chief Judicial Magistrate, Deoghar (vide annexure 2) who sent it to the Officer -in -charge of Deoghar police station for investigation. The police submitted a report (vide annexure 4) on the 31st of October, 1978 holding that an offence under Sec. 500of 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 Ss. 307and 500of the Indian Penal Code and issued process by way of warrant of arrest against the petitioner. The learned Magistrate (vide the impugned order - -annexure 6) recorded that he had perused the statement on solemn 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 prima facie found the commission of offence under Ss. 307and 500of the Indian Penal Code and retained the case on his own file.

(3.) Aggrieved by the cognizance and the issue of process against the petitioner, the present criminal miscellaneous petition was preferred on the 13th of May, 1980. Before the admission Bench itself, firm reliance was sought to be placed on Ram Kumar Pandey v/s. The State of Bihar (1979 BBCJ 293 : : 1979 PLJR 502) for contending that the learned Magistrate could not have looked into the petition of the complainant preferred before the police for taking cognizance and his having done so completely vitiated the whole proceeding itself. The learned single Judge, whilst admitting the case in view of the aforesaid Division Bench decision, nevertheless expressed the view that the same required reconsideration and final hearing should be before a larger Bench for the said purpose. In accord therewith, the matter was listed before a Full Bench of three Judges (to which I was also a party) before whom firm reliance was placed on behalf of the State on the ratio of the Full Bench in Bharat Kishore Lal Singh Deo v/s. Jadhistir Modak ( : AIR 1929 Pat 473) holding unreservedly that clauses (a), (b) and (c) of sub -section (1) of Sec. 190of the Code were not mutually exclusive. This view was, however, frontally challenged by the Learned Counsel for the petitioner on the ground that the subsequent Supreme Court decision in Chandra Deo Singh v/s. Prokash Chandra Bose @ Chabi Bose and another ( : AIR 1963 SC 1430) had overridden the earlier Full Bench judgment which was no longer good law. The Full Bench observed that being a co -equal Bench it was precluded from taking a view contrary to the Full Bench case in : AIR 1929 Pat 473 and, therefore, deemed it necessary to refer the matter to a larger Bench for an authoritative adjudication of the questions involved. That is how the matter is now be fore us.